[Federal Register: December 22, 2003 (Volume 68, Number 245)]
[Notices]
[Page 71099-71100]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22de03-38]
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DEPARTMENT OF EDUCATION
Arbitration Panel Decision Under the Randolph-Sheppard Act
AGENCY: Department of Education.
ACTION: Notice of arbitration panel decision under the Randolph-
Sheppard Act.
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SUMMARY: The Department gives notice that on April 11, 2003, an
arbitration panel rendered a decision in the matter of Joseph Urbanek
v. South Carolina Commission for the Blind (Docket No. R-S/01-7). This
panel was convened by the U.S. Department of Education, under 20 U.S.C.
107d-1(a), after the Department received a complaint filed by the
petitioner, Joseph Urbanek.
SUPPLEMENTARY INFORMATION: Under section 6(c) of the Randolph-Sheppard
Act (the Act), 20 U.S.C. 107d-2(c), the Secretary publishes in the
Federal Register a synopsis of each arbitration panel decision
affecting the administration of vending facilities on Federal and other
property.
Background
This dispute concerns the alleged failure of the South Carolina
Commission for the Blind, the State licensing agency (SLA), to properly
administer the vendor selection process regarding a military mess hall
dining facility at Fort Jackson, South Carolina, in violation of the
Act (20 U.S.C. 107 et seq.) and the implementing regulations in 34 CFR
part 395.
A summary of the facts is as follows: Complainant, Joseph Urbanek,
is a licensed Randolph-Sheppard vendor with the South Carolina
Commission for the Blind. In June 2000, the SLA posted a bid notice
with a closing date of June 9 for the dining facility at Fort Jackson,
South Carolina.
Complainant and four other vendors applied for the Fort Jackson
opening. The SLA's selection committee interviewed all candidates,
including Mr. Urbanek, on June 26, 2000. After the interviews, one of
the other vendors was awarded the Fort Jackson dining facility.
Complainant alleged that the SLA misapplied its selection criteria
by refusing to select him to receive the Fort Jackson dining facility
and instead awarded the location to another experienced blind vendor in
violation of State rules and regulations. Complainant also alleged that
the SLA was biased against him in pre-selecting the vendor who was
awarded the Fort Jackson facility resulting in a denial of his right to
due process.
The complainant requested a State fair hearing, which was held on
November 27, 2000. On February 5, 2001, the hearing officer affirmed
the SLA's denial of complainant's bid for the Fort Jackson dining
facility.
Arbitration Panel Decision
The issue heard by the panel was whether the South Carolina
Commission for the Blind violated the Act, 20 U.S.C. 107 et seq., the
implementing regulations in 34 CFR part 395, and the State regulations
by allegedly improperly denying complainant's bid on the military mess
hall dining facility at Fort Jackson, South Carolina.
After reviewing all of the records and hearing testimony of
witnesses, the panel ruled that the SLA's selection committee was not
biased against the complainant's bid for the Fort Jackson dining
facility.
Specifically, the complainant alleged that the SLA selection
committee was biased against him by adding to the five-factor selection
criteria to include information on each applicant's creditworthiness,
financial status, prior experience outside the blind vending program,
and personal references. Also, the complainant objected to Mr. Johnson,
the successful applicant, serving on a study committee that considered
and recommended changes in the selection criteria for the Fort Jackson
dining facility.
The panel concluded that, based on the evidence and testimony
presented, the additional information requested by the study committee
did not have the effect of favoring either applicant. Furthermore, the
panel determined that Mr. Johnson's decision to serve on the study
committee at the same time he was submitting a bid for the Fort Jackson
dining facility did not advance or hinder Mr. Urbanek's bid for the
same facility. In addition, the panel found that the SLA had a
legitimate basis to review and improve the selection criteria given
that the Fort Jackson facility was an important breakthrough for the
SLA.
Finally, the panel determined that the selection committee had
justification for the final ratings for the bidders. According to the
panel only three of the rating factors involved judgment. All five
members rated the complainant lower overall than Mr. Johnson.
The panel found that there was nothing in the unanimous judgment of
the selection committee in selecting the blind vendor that required a
remedy. Both bidders were qualified, but the committee found Mr.
Johnson to be more qualified. According to the panel, the committee's
selection of Mr. Johnson was a matter committed to its sound
discretion. On this basis, the panel denied plaintiff's claim.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the U.S. Department of Education.
FOR FURTHER INFORMATION CONTACT: You may obtain a copy of the full text
of the arbitration panel decision from Suzette E. Haynes, U.S.
Department of Education, 400 Maryland Avenue, SW., room 3232, Mary E.
Switzer Building, Washington, DC 20202-2738. Telephone: (202) 205-8536.
If you use a telecommunications device for the deaf (TDD), you may call
the TDD number at (202) 205-8298.
Individuals with disabilities may obtain this document in an
alternative
[[Page 71100]]
format (e.g., Braille, large print, audiotape, or computer diskette) on
request to the contact person listed in the preceding paragraph.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
http:\\http://www.ed.gov/news/fedregister.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in
the Washington, DC, area at (202) 512-1530.
Note: 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 on GPO Access at: http://www.gpoaccess.gov/nara/index.html
.
Dated: December 16, 2003.
Robert H. Pasternack,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 03-31395 Filed 12-19-03; 8:45 am]
BILLING CODE 4000-01-P