TITLE:  Maryland State Department of Education, B-288501; B-288502, August 14, 2001
BNUMBER:  B-288501; B-288502
DATE:  August 14, 2001
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Maryland State Department of Education, B-288501; B-288502, August 14, 2001

Decision

Matter of: Maryland State Department of Education

File: B-288501; B-288502

Date: August 14, 2001

Elliott L. Schoen, Esq., State of Maryland, Office of the Attorney General,
for Maryland State Department of Education, Division of Rehabilitation
Services, the protester.

John D. Inazu, Esq., Department of the Air Force, for the agency.

Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protests filed by a state licensing agency for the blind alleging
solicitation improprieties in two requests for proposals issued pursuant to
the Randolph-Sheppard Act are dismissed because the Act gives authority for
review of disputes between federal agencies and state licensing agencies
regarding these procurements to the Secretary of Education, not the General
Accounting Office.

DECISION

The Maryland State Department of Education, Division of Rehabilitation
Services, challenges the terms of requests for proposals (RFP) Nos.
FA4416-01-R-0058 and FA4416-01-R-0059, issued by the Department of the Air
Force for food services at Andrews Air Force Base (AFB) and Fort George G.
Meade, respectively. The protester alleges that the solicitations violate
certain Department of Defense (DOD) Regulations implementing the
Randolph-Sheppard Act, 20 U.S.C. sect.sect. 107 et seq. (1994), and violate other
DOD policies and guidance related to the Act as well.

We dismiss the protests.

The RFPs here advised that this procurement would be conducted pursuant to
the Randolph-Sheppard Act, which establishes a priority for blind persons
recognized and represented by state licensing authorities (SLA) under the
terms of the Act, in the award of contracts for, among other things, the
operation of cafeterias in federal buildings. 20 U.S.C. sect. 107(b); 34 C.F.R.
sect. 395.33(a) (2000). Under the Act's implementing regulations, if a
designated SLA submits an offer found to be within the competitive range for
the acquisition, award must be made to the SLA. 34 C.F.R. sect. 395.33(b). The
protester here is the designated SLA for these procurements.

In its protests, the SLA argues that two features of these solicitations
violate DOD regulations, policies, and guidance established to ensure
compliance with the Randolph-Sheppard Act. The first of these two features
is the solicitation provision in both RFPs that states:

If the SLA submits a proposal that is included in the final competitive
range established by the Contracting Officer (as identified below), the SLA
will receive award of the contract . . . .

RFP -0058, amend. 3, at 2; RFP -0059, amend. 5, at 2 (emphasis added). The
second feature, also in both RFPs, anticipates that during the price
evaluation, each offeror's price will be increased by 10 percent, except for
offers received from "HUBZone small business concerns, in accordance with
FAR [sect.] 52.219-4." RFP -0058, amend. 3, at 3; RFP -0059, amend. 5, at 3.

The Air Force seeks dismissal of these protests on the basis that the
authority for administering the requirements of the Randolph-Sheppard
Act--and specifically for resolving disputes between SLAs and contracting
agencies--has been placed with the Secretary of Education. 20 U.S.C. sect.
107d-1(b); 34 C.F.R. sect. 395.37(a). According to the Air Force, the Act
anticipates that complaints by SLAs about an agency's handling of a
procurement conducted pursuant to the Act will be addressed by arbitration.

In response, the SLA argues that the Act's assignment to the Secretary of
the authority to resolve disputes between SLAs and contracting agencies does
not include disputes about apparent solicitation improprieties. In addition,
the SLA contends that the arbitration provisions of the Act, and its
implementing regulations, are limited to issues of compliance with the Act
itself, while these protests challenge the agency's compliance with other
procurement statutes and regulations.

DISCUSSION

The Randolph-Sheppard Act has the stated purpose of "providing blind persons
with remunerative employment, enlarging the economic opportunities of the
blind, and stimulating the blind to greater efforts in striving to make
themselves self-supporting." 20 U.S.C. sect. 107(a). The Act directs the
Secretary of Education to designate state agencies responsible for training
and licensing blind persons, and provides that "[i]n authorizing the
operation of vending facilities on Federal property, priority shall be given
to blind persons licensed by a State agency." 20 U.S.C. sect. 107(b). For
purposes of the instant case, the Act includes cafeterias and snack bars
within the definition of a "vending facility." 20 U.S.C. sect. 107e(7). With
respect to the operation of cafeterias at federal facilities, the Act
directs the Secretary of Education to issue regulations to establish a
priority for blind licensees whenever "such operation can be provided at a
reasonable cost with food of a high quality comparable to that currently
provided to employees, whether by contract or otherwise." 20 U.S.C.
sect. 107d-3(e).

Pursuant to this authority, the Secretary of Education has promulgated
extensive regulations addressing the Act's requirements. Among the matters
covered by these regulations are rules governing the relationship between
the SLAs and blind vendors, rules for becoming a designated SLA within the
meaning of the Act, procedures for the oversight of SLAs by the Secretary,
and rules governing the relationship between SLAs and other federal
government agencies. 34 C.F.R. Part 395. With respect to disputes between
SLAs and federal agencies, both the statute and the regulations provide for
the filing of complaints with the Secretary, which are then resolved by
binding arbitration. 20 U.S.C. sect. 107d-1(b); 4 C.F.R. sect. 397.37. Specifically,
the regulation, which tracks closely the language of the statute, provides:

Whenever any [SLA] determines that any department, agency, or
instrumentality of the United States which has control of the maintenance,
operation, and protection of Federal property is failing to comply with the
provisions of the Act or of this part and all informal attempts to resolve
the issues have been unsuccessful, such licensing agency may file a
complaint with the Secretary

34 C.F.R. sect. 395.37(a).

With respect to the protester's assertion that the regulation quoted above
does not reach to resolution of a dispute about apparent solicitation
improprieties, we see no such limitation in the regulation. In this regard
we note that the implementing regulations elsewhere specifically address an
SLA's dissatisfaction with an agency decision that the SLA's proposal should
be excluded from the competitive range. See 34 C.F.R. sect. 395.33(b). Given
this fact, we conclude that the drafters of the implementing regulation knew
how to draw distinctions between the types of disputes that could arise
between SLAs and agencies had they intended to do so; they did not do so
here. Without such a distinction, we have no basis to conclude that section
395.37(a) of the implementing regulation does not apply to solicitation
challenges.

In its alternative response to the agency's request for dismissal, the
protester argues that the implementing regulation does not confer authority
on the Secretary to consider disputes between SLAs and agencies regarding
other procurement statutes and regulations. We need not address this issue
because, despite the protester's assertions to the contrary, both of the
protest issues raised here, at their core, challenge the agency's compliance
with the Act.

The SLA argues that these Air Force solicitations violate DOD regulations,
policies and internal guidance about implementing the Randolph-Sheppard Act.
Despite this characterization, however, a review of the protest issues shows
that they, in fact, raise matters of Randolph-Sheppard compliance.
Specifically, the first issue involves an apparent attempt to modify the
implementing regulation's creation of a priority whenever an SLA's proposal
is found to be within the competitive range. Under the solicitations here,
the Air Force would defer an SLA's priority until determination of a final
competitive range, rather than an initial one. Similarly, the second protest
issue--i.e., whether the HUBZone small business price preference is
appropriately applied in a Randolph-Sheppard procurement--again goes to the
Act's creation of a priority, and raises the question of whether an SLA's
proposal must withstand the application of a price premium before the
proposal receives the priority. In our view, these are the kind of questions
Congress expressly reserved for the Secretary under the statutory and
regulatory scheme established for Randolph-Sheppard procurements. See 34
C.F.R. sect. 395.37(a).

As a final matter, we note that the protester contends that if it is
required to take its complaint to the Secretary, it will not be able to
obtain the automatic stay of the procurement available in this forum. Thus,
the protester complains that resolution of this dispute in its favor would
likely occur too late for it to receive any meaningful remedy. While the
protester may be right, the unavailability of a stay in disputes between
SLAs and agencies under the Randolph-Sheppard Act does not warrant our
considering this dispute in view of Congress' clear intent to vest authority
for resolving disputes such as these with the Secretary. We note that the
Secretary's authority under the Act includes broad remedial powers that may
enable him to minimize the impact of not having the stay that is available
in this forum. [1] Mississippi State Dep't of Rehabilitation Servs.,
B-250783.8, Sept. 7, 1994, 94-2 CPD para. 99 at 4 n.4.

In conclusion, since Congress has specifically authorized the Secretary of
Education, not our Office, to review complaints from SLAs about agency
compliance with the Randolph-Sheppard Act, and since these protests raise
issues clearly related to the reach and scope of the Act, we will not review
the Maryland State Department of

Education's protests. Id.; Alabama Dep't of Rehabilitation Servs., B-275600,
B-275600.2, Dec. 12, 1996 (unpublished); State of Louisiana, Dep't of Social
Servs., B-274952, Oct. 17, 1996 (unpublished).

The protests are dismissed.

Anthony H. Gamboa

General Counsel

Notes

1. For the record, we also note that in previous cases where we have taken
jurisdiction over a complaint about the operation of the Randolph-Sheppard
Act, the protest was filed by a business that was competing with an SLA for
an award, not by an SLA. See generally Centro Management, Inc., B-286935,
B-286935.2, Feb. 26, 2001, 2001 CPD para. 41; Grants Janitorial and Food Serv.,
Inc., B-275157, Jan. 27, 1997, 97-1 CPD para. 50; Department of the Air
Force--Recon., B-250465.6 et al., June 4, 1993, 93-1 CPD para. 431, aff'd,
Triple P Servs., Inc. --Recon., B-250465.8, B-250783.4, Dec. 30, 1993, 93-2
CPD para. 347. Since the right to arbitration of disputes about an agency's
compliance with the Act applies only to SLAs, rather than businesses, our
review in those cases was appropriate.