Arbitration Panel Decision Under the Randolph-Sheppard Act, 18128-18129 [2017-07727]
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18128
Federal Register / Vol. 82, No. 72 / Monday, April 17, 2017 / Notices
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.
VerDate Sep<11>2014
17:14 Apr 14, 2017
Jkt 241001
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
DEPARTMENT OF EDUCATION
Arbitration Panel Decision Under the
Randolph-Sheppard Act
Department of Education.
Notice of arbitration decision.
AGENCY:
ACTION:
The Department of Education
(Department) gives notice that, on
March 17, 2011, an arbitration panel
(the Panel) rendered a decision in
Bernard Werwie, Jr. v. Pennsylvania
Office of Vocational Rehabilitation
(Case no. R–S/07–16).
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(a), after receiving a
complaint from the complainant,
Bernard Werwie, Jr., a licensed blind
operator of a vending facility in Luzerne
County, Pennsylvania. Under section
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.
SUMMARY:
Background
The complainant, Bernard Werwie,
Jr., was a licensed blind operator of a
vending facility in Luzerne County,
Pennsylvania. His dispute with the
respondent, the Commonwealth of
Pennsylvania’s Office of Vocational
Rehabilitation (PA OVR), arose out of
the termination of his participation in
the Business Enterprises Program by the
PA OVR effective December 31, 2006.
Pursuant to the Act, Mr. Werwie
sought a hearing of his claims against
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Frm 00030
Fmt 4703
Sfmt 4703
the PA OVR. On July 7, 2008, a hearing
officer dismissed his appeal and denied
his request for damages and attorney’s
fees. The PA OVR adopted the hearing
officer’s decision as its final agency
action.
Mr. Werwie then requested the
convening of the Panel. The Panel chair
moved to schedule a hearing for that
summer. There were no acceptable
hearing dates available in the summer,
so the Panel chair circulated a list of
proposed dates in late 2009.
The hearing was not held in 2009
because, in July, Mr. Werwie discharged
the attorneys he had engaged to handle
the case. The Panel granted him until
January 2010 to find new counsel.
Despite being granted an extension to
name a new representative by January of
2010, Mr. Werwie did not respond until
February 25. In his response, he
indicated that he was still looking for
new counsel and asked that the case be
held in abeyance until September 2010
or until further notice. The PA OVR
objected to this request for delay, and,
on March 29, 2010, the Panel gave Mr.
Werwie until May 3, 2010, to find new
counsel.
Mr. Werwie never responded with the
name of a new representative as
requested by that deadline. Accordingly,
the Panel chair informed him that, if he
intended to proceed with his case
against the PA OVR, he had to respond
by June 10, 2010.
On July 1, 2010, the PA OVR filed a
motion to dismiss Mr. Werwie’s claims
for failure to prosecute. Counsel for the
PA OVR served Mr. Werwie a copy of
this motion and supporting brief by
sending them by First Class Mail to his
Fredericksburg, Virginia, address.
On July 18, 2010, the RSA informed
the Panel chair of an email received
from Mr. Werwie asking about the status
of his case. In it, he alleged that he had
heard nothing about the case since early
March. This message was from email
and postal mail addresses different from
those he had used in his prior
correspondence. The New Cumberland,
Pennsylvania, address that he listed in
his July 18 communication was
identified as his father’s address.
The Panel responded to Mr. Werwie
on August 9, 2010. It asked him for
confirmation that he was ready to
proceed with the case and instructed
him to inform it of the name and contact
information of his new counsel on or
before August 29, 2010. The Panel
indicated that, if it could not schedule
a hearing, it would then proceed with
the PA OVR’s motion to dismiss the
complaint.
On August 18, Mr. Werwie notified
the Panel that his representatives were
E:\FR\FM\17APN1.SGM
17APN1
Federal Register / Vol. 82, No. 72 / Monday, April 17, 2017 / Notices
the same attorneys whom he fired on
July 22, 2009. The Panel then asked the
attorneys to confirm that they
represented Mr. Werwie and proposed a
conference call to be held on September
2, 2010.
On August 30, one of the attorneys,
Mr. Leiterman, responded by email that
Mr. Werwie asked him and his
colleague to represent him in this case.
Mr. Leiterman continued that they had
‘‘agreed in principle,’’ and they
expected the letter of representation to
be signed in the next week. However, in
the two weeks that followed, the Panel
did not hear from either attorney.
On September 17, 2010, the Panel
sent Mr. Werwie a letter indicating that
it would grant the PA OVR’s motion to
dismiss if Mr. Werwie did not respond
by November 1, 2010. Neither Mr.
Werwie nor his attorneys responded to
the motion to dismiss. On March 17,
2011, the Panel granted the PA OVR’s
motion to dismiss for failure to
prosecute.
mstockstill on DSK30JT082PROD with NOTICES
The Panel reviewed the statutory
language of the Act and the RSA’s
implementing regulations, policies, and
procedures. The Panel concluded that it
has the authority to grant a motion to
dismiss in this case without first
conducting a hearing. It also concluded
that there were unusual circumstances
present in this case, notably delays in
the process due to the change of Mr.
Werwie’s lawyers. The Panel repeatedly
warned Mr. Werwie that his failure to
move the case forward could result in
dismissal and noted that he chose not to
file a response at all although he was
given ample time to do so. Because of
these circumstances, the Panel decided
that granting the PA OVR’s motion to
dismiss for Mr. Werwie’s failure to
prosecute was an appropriate exercise of
its discretion.
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.
17:14 Apr 14, 2017
Jkt 241001
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. 2017–07727 Filed 4–14–17; 8:45 am]
BILLING CODE 4000–01–P
DEPARTMENT OF EDUCATION
Arbitration Panel Decision Under the
Randolph-Sheppard Act
AGENCY:
ACTION:
Department of Education.
Notice of arbitration decision.
The Department of Education
(Department) gives notice that, on May
30, 2012, an arbitration panel (the
Panel) rendered a decision in the matter
of the Colorado Department of Human
Services, Division of Vocational
Rehabilitation, Business Enterprise
Program v. the United States
Department of Defense, Department of
the Air Force (Case no. R–S/10–06).
SUMMARY:
Synopsis of the Panel Decision
VerDate Sep<11>2014
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.
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 5028,
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.
FOR FURTHER INFORMATION CONTACT:
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 Colorado
Department of Human Services,
Division of Vocational Rehabilitation,
Business Enterprise Program. Under
section 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.
SUPPLEMENTARY INFORMATION:
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Frm 00031
Fmt 4703
Sfmt 4703
18129
Background
This is an arbitration between the
Colorado Department of Human
Services and the United States
Department of Defense, Department of
the Air Force, pursuant to the Act.
From October 1, 2006 through March
31, 2011, Don Hudson, a blind vendor
licensed by the complainant, the
Colorado Department of Human
Services (CO DHS), Division of
Vocational Rehabilitation, Business
Enterprise Program, operated the High
Country Inn, a food service operation
located at the United States Air Force
Academy near Colorado Springs,
Colorado. In 2010, the respondent, the
United States Department of Defense,
Department of the Air Force (Air Force),
published a competitive bidding
announcement for the operation of the
High Country Inn. The Air Force
included in its solicitation for this
contract a requirement that only those
offerors whose price was within 5
percent of the lowest offeror’s price
would be considered for award of the
contract.
The CO DHS’s bid was in excess of
this 5 percent competitive range and,
accordingly, the CO DHS was
eliminated from competition for the
contract. The contract was awarded to
the lowest bidder.
The CO DHS filed a complaint with
the United States Secretary of Education
pursuant to the Act and its regulations.
The CO DHS claimed that the 5 percent
competitive range was set at such a low
figure that it eliminated the priority to
be afforded to blind vendors under the
Act and its regulations. It also asserted
that the Air Force misled it into
thinking it had the lowest bid and,
therefore, the CO DHS did not reduce its
price when it had the opportunity to
revise its bid in response to an
amendment to the solicitation. In
addition, it claimed that the Air Force
should have conducted direct
negotiations with the blind vendor
rather than using a competitive process.
The CO DHS also claimed that the Air
Force violated 34 CFR 395.20(b) because
the 5 percent competitive range was a
limitation that the Air Force did not
justify in writing to the Secretary of
Education. Finally, the CO DHS asserted
that the 5 percent competitive range was
unlawful because it was based on the
August 29, 2006, Joint Report to
Congress, which required the setting of
this competitive range but had not yet
been implemented.
Synopsis of the Panel Decision
The Panel held, with one member
dissenting, that the CO DHS had waived
E:\FR\FM\17APN1.SGM
17APN1
]]>Agencies
[Federal Register Volume 82, Number 72 (Monday, April 17, 2017)]
[Notices]
[Pages 18128-18129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07727]
-----------------------------------------------------------------------
DEPARTMENT OF EDUCATION
Arbitration Panel Decision Under the Randolph-Sheppard Act
AGENCY: Department of Education.
ACTION: Notice of arbitration decision.
-----------------------------------------------------------------------
SUMMARY: The Department of Education (Department) gives notice that, on
March 17, 2011, an arbitration panel (the Panel) rendered a decision in
Bernard Werwie, Jr. v. Pennsylvania Office of Vocational Rehabilitation
(Case no. R-S/07-16).
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(a), after
receiving a complaint from the complainant, Bernard Werwie, Jr., a
licensed blind operator of a vending facility in Luzerne County,
Pennsylvania. Under section 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, Bernard Werwie, Jr., was a licensed blind operator
of a vending facility in Luzerne County, Pennsylvania. His dispute with
the respondent, the Commonwealth of Pennsylvania's Office of Vocational
Rehabilitation (PA OVR), arose out of the termination of his
participation in the Business Enterprises Program by the PA OVR
effective December 31, 2006.
Pursuant to the Act, Mr. Werwie sought a hearing of his claims
against the PA OVR. On July 7, 2008, a hearing officer dismissed his
appeal and denied his request for damages and attorney's fees. The PA
OVR adopted the hearing officer's decision as its final agency action.
Mr. Werwie then requested the convening of the Panel. The Panel
chair moved to schedule a hearing for that summer. There were no
acceptable hearing dates available in the summer, so the Panel chair
circulated a list of proposed dates in late 2009.
The hearing was not held in 2009 because, in July, Mr. Werwie
discharged the attorneys he had engaged to handle the case. The Panel
granted him until January 2010 to find new counsel.
Despite being granted an extension to name a new representative by
January of 2010, Mr. Werwie did not respond until February 25. In his
response, he indicated that he was still looking for new counsel and
asked that the case be held in abeyance until September 2010 or until
further notice. The PA OVR objected to this request for delay, and, on
March 29, 2010, the Panel gave Mr. Werwie until May 3, 2010, to find
new counsel.
Mr. Werwie never responded with the name of a new representative as
requested by that deadline. Accordingly, the Panel chair informed him
that, if he intended to proceed with his case against the PA OVR, he
had to respond by June 10, 2010.
On July 1, 2010, the PA OVR filed a motion to dismiss Mr. Werwie's
claims for failure to prosecute. Counsel for the PA OVR served Mr.
Werwie a copy of this motion and supporting brief by sending them by
First Class Mail to his Fredericksburg, Virginia, address.
On July 18, 2010, the RSA informed the Panel chair of an email
received from Mr. Werwie asking about the status of his case. In it, he
alleged that he had heard nothing about the case since early March.
This message was from email and postal mail addresses different from
those he had used in his prior correspondence. The New Cumberland,
Pennsylvania, address that he listed in his July 18 communication was
identified as his father's address.
The Panel responded to Mr. Werwie on August 9, 2010. It asked him
for confirmation that he was ready to proceed with the case and
instructed him to inform it of the name and contact information of his
new counsel on or before August 29, 2010. The Panel indicated that, if
it could not schedule a hearing, it would then proceed with the PA
OVR's motion to dismiss the complaint.
On August 18, Mr. Werwie notified the Panel that his
representatives were
[[Page 18129]]
the same attorneys whom he fired on July 22, 2009. The Panel then asked
the attorneys to confirm that they represented Mr. Werwie and proposed
a conference call to be held on September 2, 2010.
On August 30, one of the attorneys, Mr. Leiterman, responded by
email that Mr. Werwie asked him and his colleague to represent him in
this case. Mr. Leiterman continued that they had ``agreed in
principle,'' and they expected the letter of representation to be
signed in the next week. However, in the two weeks that followed, the
Panel did not hear from either attorney.
On September 17, 2010, the Panel sent Mr. Werwie a letter
indicating that it would grant the PA OVR's motion to dismiss if Mr.
Werwie did not respond by November 1, 2010. Neither Mr. Werwie nor his
attorneys responded to the motion to dismiss. On March 17, 2011, the
Panel granted the PA OVR's motion to dismiss for failure to prosecute.
Synopsis of the Panel Decision
The Panel reviewed the statutory language of the Act and the RSA's
implementing regulations, policies, and procedures. The Panel concluded
that it has the authority to grant a motion to dismiss in this case
without first conducting a hearing. It also concluded that there were
unusual circumstances present in this case, notably delays in the
process due to the change of Mr. Werwie's lawyers. The Panel repeatedly
warned Mr. Werwie that his failure to move the case forward could
result in dismissal and noted that he chose not to file a response at
all although he was given ample time to do so. Because of these
circumstances, the Panel decided that granting the PA OVR's motion to
dismiss for Mr. Werwie's failure to prosecute was an appropriate
exercise of its discretion.
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. 2017-07727 Filed 4-14-17; 8:45 am]
BILLING CODE 4000-01-P
