[Federal Register: April 6, 2001 (Volume 66, Number 67)]
[Notices]
[Page 18235-18236]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06ap01-36]
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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: Notice is hereby given that on January 6, 2000, an arbitration
panel rendered a decision in the matter of Alaska Division of
Vocational Rehabilitation v. United States Department of Defense,
Department of the Army (Docket No. R-S/97-2). This panel was convened
by the U.S. Department of Education pursuant to 20 U.S.C. 107d-1(b)
upon receipt of a complaint filed by petitioner, the Alaska Division of
Vocational Rehabilitation.
FOR FURTHER INFORMATION: A copy of the full text of the arbitration
panel decision may be obtained from George F. Arsnow, U.S. Department
of Education, 400 Maryland Avenue, SW., room 3230, Mary E. Switzer
Building, Washington DC 20202-2738. Telephone: (202) 205-9317. 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 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: www.ed.gov/legislation/FedRegister
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Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
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Regulations is available on GPO Access at: http://
www.access.gpo.gov/nara/index.html
SUPPLEMENTARY INFORMATION: Pursuant to the Randolph-Sheppard Act (20
U.S.C. 107d-2(c)) (the Act), 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 violation by the United States
Department of Defense, Department of the Army (Army), of the priority
provisions of the Act by denying the Alaska Division of Vocational
Rehabilitation, the State licensing agency (SLA), the opportunity to
operate a dining facility at the Fort Richardson, Alaska, Army
Installation.
A summary of the facts is as follows: On July 16, 1996, the SLA
wrote to the Director of Contracting at Fort Richardson expressing its
desire to enter into negotiations for the operation of a dining
facility at the Army Installation.
In late November 1996, the SLA learned that a food service contract
had been awarded to another contract vendor in Anchorage, Alaska.
Subsequently, the SLA appealed this decision and immediately contacted
the Army contracting office. The Army contracting office advised the
SLA that the Army indeed had awarded the contract to another vendor.
Further, the Army declined to consider the SLA's appeal, advising the
SLA that the time for appealing awards had passed.
The SLA alleged that the dining facility contract at the Fort
Richardson Installation meets the definition of satisfactory site under
the Act and implementing regulations in 34 CFR 395.1(q). Further, the
SLA alleged that the Army contracting office failed to negotiate in
good faith.
By this action, the SLA asserted that the Army denied it due
process under the Act, and as a result the SLA was not awarded the
dining facility contract under the terms of the Act. The SLA filed a
request to convene an arbitration panel to hear this complaint. A
Federal arbitration hearing on this matter was held on February 11 and
12, 1998.
Following the hearing, post-hearing briefs were submitted by the
two panel members representing the SLA and the Army to the Panel Chair.
However, after considerable time had elapsed the final award was not
submitted by the Panel Chair to the Department of Education
(Department). Accordingly, a new Panel Chair was selected in August
1999. The parties determined that it was not necessary to hold another
hearing on the matter. It was further agreed that the newly appointed
Panel Chair would render an opinion based upon the proceedings and
submissions that had already taken place, and input from the two panel
members and a final opinion and award would be submitted to the
Department.
Arbitration Panel Decision
The central issue before the arbitration panel was whether the
Army's alleged failure to negotiate with the SLA in good faith for a
dining facility contract at the Fort Richardson Installation
constituted a violation of the satisfactory site provisions provided by
the Act (20 U.S.C. 107 et seq.) and the implementing regulations (34
CFR part 395).
The Army contended that military troop dining facility procurement
with appropriated funds is not subject to the priority provisions of
the Act. The
[[Page 18236]]
majority of the panel found that this contention was not consistent
with the findings of the Department of Education, the memorandum issued
by the General Counsel of the Department of Defense in November 1998,
and the Comptroller General's opinion of June 1993, which stated that
generally military dining facilities are cafeterias and are indeed
included within the scope of and subject to the Act.
Therefore, the majority of the panel ruled that the SLA was correct
in asserting that procurements with appropriated funds are equally
subject to the priority provisions of the Act as are procurements with
non-appropriated funds. Similarly, the panel ruled that military dining
facilities have been considered to come within the definition of
cafeterias as defined in the Act and by administrative interpretation.
However, the panel concluded that the Act's priority is not
applicable if the contract is for discrete services rather that the
overall ``operation'' of the dining facilities. The facts of the case
supported the Army's decision to give the contract to the other vendor
and not to the SLA. Specifically, the majority of the panel determined
that, although the Army contracted out certain functions, it retained
overall operation of the dining facility and operated it on an in house
basis. Thus, the panel concluded that the factual setting of the Fort
Richardson dining contract did not constitute the operation of a
cafeteria, which would trigger the priority provisions of the Act.
Moreover, the panel majority ruled that no vending occurred and no
concessions were involved in the Fort Richardson dining contract.
Consequently, the contract was not an entrepreneurial activity of the
type contemplated by the Randolph-Sheppard Act.
One panel member dissented.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the U.S. Department of Education.
Dated: April 3, 2001.
Andrew J. Pepin,
Executive Administrator for Special Education and Rehabilitative
Services.
[FR Doc. 01-8557 Filed 4-5-01; 8:45 am]
BILLING CODE 4000-01-U