Arbitration Panel Decision Under the Randolph-Sheppard Act, 18128-18129 [2017-07727]

Download as PDF mstockstill on DSK30JT082PROD with NOTICES 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 PO 00000 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: PO 00000 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]


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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