Arbitration Panel Decision Under the Randolph-Sheppard Act, 18130-18131 [2017-07730]

Download as PDF 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 Federal Register / Vol. 82, No. 72 / Monday, April 17, 2017 / Notices granted by the Act and the Commission’s rules. DEPARTMENT OF EDUCATION Summary of Panel Decision mstockstill on DSK30JT082PROD with NOTICES At Mr. Beard’s request, the Panel was convened on October 7, 2012. The Panel concluded that the Commission did not have the authority to grant Mr. Beard’s requested relief. One Panel member asserted that section 107b(3) of the Act authorizes the Commission to provide licensed vendors with a fair minimum return when circumstances warrant it. Another Panel member indicated that this section is not mandatory language and that the Commission’s rules do not provide for remuneration. The Panel chair stated that the Commission ought to adopt a rule to provide some remuneration for situations like this. However, absent any rule in place, the Panel decided that there was insufficient justification for any remuneration and, therefore, remuneration was not appropriate in this case. 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. 2017–07730 Filed 4–14–17; 8:45 am] BILLING CODE 4000–01–P II. Program Authority and Eligibility Information Application Deadline for Fiscal Year 2017; Small, Rural School Achievement Program Under what statutory authority will FY 2017 SRSA grant awards be made? Office of Elementary and Secondary Education, Department of Education. ACTION: Notice. AGENCY: Under the Small, Rural School Achievement (SRSA) program, Catalog of Federal Domestic Assistance (CFDA) number 84.358A, the U.S. Department of Education (Department) awards grants on a formula basis to eligible local educational agencies (LEAs) to address the unique needs of rural school districts. In this notice, we establish the deadline and describe the submission procedures for fiscal year (FY) 2017 SRSA grant applications. All LEAs eligible for FY 2017 SRSA funds must submit an application electronically via Grants.gov by the deadline in this notice. DATES: Applications Available: May 1, 2017. Application Deadline: June 30, 2017 by 4:30:00 p.m., Washington, DC time. FOR FURTHER INFORMATION CONTACT: Mr. Eric Schulz, U.S. Department of Education, 400 Maryland Avenue SW., Room 3E–210, Washington, DC 20202. Telephone: (202) 260–7349 or by email: reap@ed.gov. 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. SUPPLEMENTARY INFORMATION: SUMMARY: I. Award Information Type of Award: Formula grant. Estimated Available Funds: The Further Continuing and Security Assistance Appropriations Act, 2017, would provide, on an annualized basis, $87,752,864 for this program. The actual level of funding, if any, depends on final congressional action. However, we are inviting applications to allow enough time to complete the grant process if Congress appropriates funds for this program. Estimated Range of Awards: $0– $60,000. Note: Depending on the number of eligible LEAs identified in a given year and the amount appropriated by Congress for the program, some eligible LEAs may receive an SRSA allocation of $0 under the statutory funding formula. Estimated Number of Awards: 4,300. Note: The Department is not bound by any estimates in this notice. VerDate Sep<11>2014 17:14 Apr 14, 2017 18131 Jkt 241001 PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 The FY 2017 SRSA grant awards will be made under the statutory authority in title V, part B, subpart 1 of the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the Every Student Succeeds Act (ESSA) (Pub. Law 114–95). Which LEAs are eligible for an award under the SRSA program? For FY 2017, an LEA (including a public charter school that is considered an LEA under State law) is eligible for an award under the SRSA program if it meets one of the following criteria: (a)(1) The total number of students in average daily attendance at all of the schools served by the LEA is fewer than 600; or each county in which a school served by the LEA is located has a total population density of fewer than 10 persons per square mile; and (2) All of the schools served by the LEA are designated with a school locale code of 41, 42, or 43 by the Department’s National Center for Education Statistics (NCES); or the Secretary has determined, based on a demonstration by the LEA and concurrence of the State educational agency, that the LEA is located in an area defined as rural by a governmental agency of the State. (b) The LEA is a member of an educational service agency (ESA) that does not receive SRSA funds, and the LEA meets the eligibility requirements described in (a)(1) and (2) above. (c) The LEA meets the requirements for a hold harmless award as described in section 5212(b)(4) of the ESEA, as amended by the ESSA. These are LEAs that are no longer eligible for the SRSA program because of amendments made under the ESSA to the locale code designations referenced in section 5211(b)(1)(A)(ii) of the ESEA, as amended by the ESSA. However, these LEAs may receive a FY 2017 award at a reduced rate as described in section 5212(b)(4) of the ESEA, as amended by the ESSA. Note: A new ‘‘Choice of Participation’’ provision under section 5225 of the ESEA, as amended by the ESSA, gives LEAs eligible for both SRSA and the Rural and LowIncome School (RLIS) program authorized under title V, part B, subpart 2 of the ESEA, as amended by the ESSA, the option to participate in either the SRSA program or the RLIS program. LEAs eligible for both SRSA and RLIS are referred to as ‘‘dual-eligible LEAs’’. E:\FR\FM\17APN1.SGM 17APN1

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[Federal Register Volume 82, Number 72 (Monday, April 17, 2017)]
[Notices]
[Pages 18130-18131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07730]


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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 
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 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

[[Page 18131]]

granted by the Act and the Commission's rules.

Summary of Panel Decision

    At Mr. Beard's request, the Panel was convened on October 7, 2012. 
The Panel concluded that the Commission did not have the authority to 
grant Mr. Beard's requested relief. One Panel member asserted that 
section 107b(3) of the Act authorizes the Commission to provide 
licensed vendors with a fair minimum return when circumstances warrant 
it. Another Panel member indicated that this section is not mandatory 
language and that the Commission's rules do not provide for 
remuneration. The Panel chair stated that the Commission ought to adopt 
a rule to provide some remuneration for situations like this. However, 
absent any rule in place, the Panel decided that there was insufficient 
justification for any remuneration and, therefore, remuneration was not 
appropriate in this case.
    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. 2017-07730 Filed 4-14-17; 8:45 am]
 BILLING CODE 4000-01-P