Arbitration Panel Decision Under the Randolph-Sheppard Act, 18129-18130 [2017-07728]
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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
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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
mstockstill on DSK30JT082PROD with NOTICES
18130
Federal Register / Vol. 82, No. 72 / Monday, April 17, 2017 / Notices
its claim that the 5 percent competitive
range on its face violated the Act
because the CO DHS failed to protest the
competitive range at the time the Air
Force issued the solicitation. The Air
Force had the discretion to set a
competitive range at this level.
The Panel also held that the CO DHS
waived its claim that the 5 percent
limitation was a limitation on the
operation of a vending facility because
it failed to raise it at the time the Air
Force issued the solicitation.
The Panel further held that the Joint
Report was not effective because
regulations implementing that report
had never been promulgated and the 5
percent competitive range set by the Air
Force was not based on the Joint Report.
The Panel held that, instead, the
competitive range was the product of
the Air Force’s need to keep down its
costs and emphasize the importance of
price to bidders.
In addition, the Panel held that the
Air Force was not required to conduct
discussions with the CO DHS because
the Act permits, but does not require,
such discussions. In addition, the
Federal Acquisition Regulation (FAR)
does not require discussions with
bidders. The Panel held that, even if the
FAR did require discussions, a violation
of the FAR cannot be the subject of
arbitration under the Act.
The Panel held that such a claim did
not involve an alleged violation of the
Act and, therefore, could not be brought
in arbitration. The Panel also
determined that the claim that the Air
Force misled the CO DHS into thinking
it had the lowest bid did not involve an
alleged violation of the Act and,
therefore, could not be brought in
arbitration. Under the facts of this case,
the Panel determined that the CO DHS
could not reasonably claim prejudice
because of an allegedly misleading
statement by the Air Force.
The Panel concluded, with one
member dissenting, that the Air Force
violated the Act’s regulations when it
failed to consult with the Secretary of
Education during this solicitation. Even
though the Air Force determined that
the CO DHS’s bid was not within the 5
percent competitive range, the Panel
held that 34 CFR 395.33(a) required the
Air Force to consult with the Secretary
of Education in order to determine
whether the blind vendor was entitled
to a priority in the solicitation pursuant
to that regulatory provision. The Panel
directed that, if the Secretary of
Education determines after consultation
with the Air Force that the CO DHS
should be afforded a priority pursuant
to 34 CFR 395.33(a), the Air Force will
VerDate Sep<11>2014
17:14 Apr 14, 2017
Jkt 241001
be required to initiate a new acquisition
in compliance with 34 CFR 395.33.
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. 2017–07728 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
October 7, 2012, an arbitration panel
(the Panel) rendered a decision in
Rutherford Beard v. the Michigan
Commission for the Blind (Case no. R–
S/09–01).
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
SUMMARY:
PO 00000
Frm 00032
Fmt 4703
Sfmt 4703
the Randolph-Sheppard Act (Act), 20
U.S.C. 107d–1(a), after receiving a
complaint from Rutherford Beard, a
licensed blind operator of a vending
facility at the Joint Forces Training
Center. 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, Rutherford Beard, is
a food vendor in the respondent’s, the
Michigan Commission for the Blind’s
(Commission), business enterprise
program (BEP). On May 1, 2008, Mr.
Beard signed a vending facility
agreement to operate a cafeteria at the
Joint Forces Training Center. He was
provided with initial inventory and
equipment, and the cafeteria began to
sell food. This facility was projected to
generate $150,000 in annual sales with
an 11 percent profit. The facility did not
generate the expected sales and
ultimately Mr. Beard had to lay off two
employees. As a result, his staff was
reduced to himself and a part-time
employee.
Because the facility was not
generating any profit, Mr. Beard asked
for a profit percentage exception after
six months. He explained that, if a
vendor does not meet the expected
profit margin and does not get an
exception, he is not eligible to bid on a
different facility. Mr. Beard testified that
he ‘‘tried everything,’’ including
opening on some weekends and opening
for breakfast, but he did not generate a
profit. After Mr. Beard attempted to
transfer to another location, the
Commission informed him that he had
to remain for at least a year according
to the BEP rules. The cafeteria was then
closed.
In his appeal, Mr. Beard claimed that
he did not get sufficient help from the
BEP and was not allowed to transfer out
after six months. He also asserted that
there were vending machines in
different buildings on the same grounds
that could have been awarded to him to
lessen the adverse financial effect of the
lack of business. That solution was also
denied. Mr. Beard also contended that
because the initial projection for sales at
this cafeteria was miscalculated, and
because he was not allowed to transfer
after six months, the Commission
should reimburse him for his losses.
In response, the Commission asserted
that, under its rules, there is no
guarantee that a vendor will make a
profit. It also pointed out that Mr. Beard
did not exercise the procedural rights
E:\FR\FM\17APN1.SGM
17APN1
]]>Agencies
[Federal Register Volume 82, Number 72 (Monday, April 17, 2017)]
[Notices]
[Pages 18129-18130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07728]
-----------------------------------------------------------------------
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
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).
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 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.
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 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.
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
[[Page 18130]]
its claim that the 5 percent competitive range on its face violated the
Act because the CO DHS failed to protest the competitive range at the
time the Air Force issued the solicitation. The Air Force had the
discretion to set a competitive range at this level.
The Panel also held that the CO DHS waived its claim that the 5
percent limitation was a limitation on the operation of a vending
facility because it failed to raise it at the time the Air Force issued
the solicitation.
The Panel further held that the Joint Report was not effective
because regulations implementing that report had never been promulgated
and the 5 percent competitive range set by the Air Force was not based
on the Joint Report. The Panel held that, instead, the competitive
range was the product of the Air Force's need to keep down its costs
and emphasize the importance of price to bidders.
In addition, the Panel held that the Air Force was not required to
conduct discussions with the CO DHS because the Act permits, but does
not require, such discussions. In addition, the Federal Acquisition
Regulation (FAR) does not require discussions with bidders. The Panel
held that, even if the FAR did require discussions, a violation of the
FAR cannot be the subject of arbitration under the Act.
The Panel held that such a claim did not involve an alleged
violation of the Act and, therefore, could not be brought in
arbitration. The Panel also determined that the claim that the Air
Force misled the CO DHS into thinking it had the lowest bid did not
involve an alleged violation of the Act and, therefore, could not be
brought in arbitration. Under the facts of this case, the Panel
determined that the CO DHS could not reasonably claim prejudice because
of an allegedly misleading statement by the Air Force.
The Panel concluded, with one member dissenting, that the Air Force
violated the Act's regulations when it failed to consult with the
Secretary of Education during this solicitation. Even though the Air
Force determined that the CO DHS's bid was not within the 5 percent
competitive range, the Panel held that 34 CFR 395.33(a) required the
Air Force to consult with the Secretary of Education in order to
determine whether the blind vendor was entitled to a priority in the
solicitation pursuant to that regulatory provision. The Panel directed
that, if the Secretary of Education determines after consultation with
the Air Force that the CO DHS should be afforded a priority pursuant to
34 CFR 395.33(a), the Air Force will be required to initiate a new
acquisition in compliance with 34 CFR 395.33.
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. 2017-07728 Filed 4-14-17; 8:45 am]
BILLING CODE 4000-01-P
