Date: November 25, 1996

Case No.: 96-JTP-11

In the Matter of:

CALIFORNIA HEALTH AND WELFARE AGENCY,
    Complainant,

    v.

U.S. DEPARTMENT OF LABOR,
    Respondent.

    The above-captioned matter is before the Office of Administrative Law Judges upon Complainant's request for a hearing under the Job Training Partnership Act, 29 U.S.C. § 1501, et seq., and the regulations issued thereunder at 20 C.F.R. Part 636. On October 31, 1996, this Office received the Grant Officer's motion for summary decision and for a stay of the proceedings pending a ruling on the motion for summary decision. Complainant's response to these motions was received on November 14, 1996.

    The Grant Officer contends that Complainant's application for the Title IV-C JTPA funds at issue was not responsive to or in compliance with the requirements of the solicitation for funds. The Grant Officer states that the solicitation required applications for funding to be less than $850,000 and to provide for mandatory activities for employment development plans, core training, and job placement services. However, Complainant's application requested funding in the amount of ,000,000 and provided that core training activities would be provided to at least fifty-one percent of the enrolled participants. The Grant Officer asserts that Complainant clearly did not comply with the requirements of the solicitation, which were established by the U.S. Department of Labor as the minimum necessary to fulfill the program to provide services and training to veterans who have barriers to employment and to assist those veterans in obtaining unsubsidized employment. Because the Grant Officer followed the procedures set forth in the solicitation in denying Complainant's application and because Complainant did not follow those procedures in submitting its application, the Grant Officer contends that Complainant is not entitled to receive a JTPA Title IV-C grant for the program year 1996.

    Complainant argues that the Grant Officer's suggestion that the application

was non-responsive is meritless because the administrative file does not reflect that the application was rejected as non-responsive. Thus, Complainant asserts that a dispute about a material fact exists because it does not know how this issue affected the Grant Officer's evaluation of California's application. Complainant also notes that the solicitation provided that the Grant Officer could negotiate with applicants before a final grant award. However, Complainant was not provided with the opportunity to negotiate and has no information regarding the extent to which the Grant Officer conducted negotiations with other parties. If the Grant Officer negotiated with other states whose application did not comply with the solicitation, Complainant suggests that this would present a material issue of fact as to why this discretion was not exercised with Complainant. Complainant also contends that the Grant Officer did not calculate the cost proposal scores based on the criteria listed in the solicitation. Complainant opposes the motion to stay the proceedings and states that without full discovery, it does not have access to factual information to support its opposition to the motion for summary judgment. Complainant further argues that the Grant Officer has not responded to Complainant's October 3, 1996 Request for Production of Documents, which is a sufficient basis on which to deny the motion for summary judgment.

    Twenty-nine C.F.R. § 18.40(d) provides that

[t]he administrative law judge may enter summary judgment for either party if the pleadings, affidavits, material obtained through discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision. The administrative law judge may deny the motion whenever the moving party denies access to information by means of discovery to a party opposing the motion.

Where an issue of fact does exist, the administrative law judge shall set the matter for an evidentiary hearing. 20 C.F.R. § 18.41(b).

    Complainant has raised enough factual issues to demonstrate that summary judgment would not be appropriate in this matter at this time. Although Complainant's arguments are mostly conjecture, it has not had the opportunity to complete discovery and has not received the Grant Officer's response to the Request for the Production of Documents. Thus, it is without knowledge of the facts necessary to respond thoroughly to this motion. However, that the administrative file does not indicate that Complainant's application was rejected for non-responsiveness creates a disputed issue of material fact where the Grant Officer contends that this was the basis for non-selection. As this fact is in dispute and as the moving party has not responded to Complainant's discovery request, the motion for summary decision is DENIED, and the motion to stay the proceedings is DENIED.

    SO ORDERED.

      JOHN M. VITTONE
      Chief Administrative Law Judge

JMV/cy