FR Doc 03-18375
[Federal Register: July 21, 2003 (Volume 68, Number 139)]
[Notices]
[Page 43094-43095]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jy03-68]
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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 July 26, 2002, an
arbitration panel rendered a decision in the matter of Illinois
Department of Human Services, Office of Rehabilitation Services v. U.S.
Department of Defense, Department of the Navy (Docket No. R-S/01-02).
This panel was convened by the U.S. Department of Education, under 20
U.S.C. 107d-1(b), after the Department received a complaint filed by
the petitioner, Illinois Department of Human Services, Office of
Rehabilitation Services.
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 improper awarding of a full food
service contract to a nonprofit agency under the Javits-Wagner-O'Day
Act (JWOD) by the U.S. Department of Defense, Department of the Navy
(Navy), 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: On March 16, 1998, in
response to solicitation N00140-98-R-1159, the State licensing agency
(SLA) notified the Navy in writing that it wished to operate the full
food service contract for the Naval Training Center and Recruitment
Training Center in Great Lakes, Illinois. On May 12, 1998, the Navy
responded that the contract was being awarded to Goodwill Services,
Inc., of Southern Wisconsin under the provisions of JWOD. A Federal
Register notice, dated May 8, 1998, announced this pending contract
award and allowed 30 days for public comment.
The SLA did not submit any comments pursuant to the Federal
Register notice. Nearly seven months later, on December 28, 1998, the
SLA informed the Navy of its concern that the Navy awarded this
contract under JWOD and indicated that it was prepared to take the
matter to arbitration under the Act. The SLA also informed the Navy, in
an opinion dated November 12, 1998, that the General Counsel for the
Department of Defense (DOD) advised that the Act is applicable to
military dining facilities. As a result, the SLA indicated that
arbitration was unnecessary and that it was eager to enter into
negotiations with the Navy for a full food service contract at the
facility to be operated by a blind vendor in accordance with the Act.
On April 6, 1999, the Navy responded that it had no authority to
terminate this contract issued pursuant to JWOD.
There was no further communication between the parties until
October 10, 2000, when the SLA requested that the Secretary of
Education convene a Federal arbitration panel to hear this complaint. A
panel was convened and a hearing on this matter was held on April 9 and
10, 2002.
Arbitration Panel Decision
The issues heard by the panel were--(1) Whether the Navy, in
accordance with the Act, must grant priority to the SLA for a contract
so that full food services at the Great Lakes Naval Training Center may
be provided by a licensed blind vendor; (2) whether the Act, which
affords licensed blind vendors statutory priority to operate cafeterias
and vending stands on Federal property, including that of DOD/Navy,
takes precedence over the JWOD Act; (3) whether an arbitration panel
convened under the Act has jurisdiction to determine if the Act takes
precedence over the JWOD Act; (4) whether a contracting office has
authority to issue a competitive procurement for services that are
currently on the JWOD procurement list; and (5) whether the SLA waived
any right it may have had to challenge the inclusion of the disputed
food services on the JWOD procurement list and the subsequent award of
a contract for those services to private vendors.
After considering all of the evidence, including the post-hearing
briefs submitted by both parties, the majority of the panel ruled that
the dispute should be resolved in favor of the Navy under the laches
doctrine because of the SLA's delay in filing for Federal arbitration.
The SLA had alleged that the delay in filing the arbitration
request of over 18 months since the time of the last communication from
the Navy was not unreasonable because the SLA had program
responsibilities under both the Act and JWOD and needed to balance the
policy needs under both authorities before determining whether to file
for Federal arbitration.
However, the panel determined that there was no reasonable cause
for delay by the SLA in seeking Federal arbitration under the Act. The
panel's decision was based upon the finding that there are strong
reasons to require both timely action and finality in
[[Page 43095]]
resolving arbitration disputes under the Act.
The panel also determined that the SLA's delay in seeking
arbitration greatly prejudiced the Navy and the facility and its
current contractor and that there was no reasonable cause for the
delay. Therefore, the panel concluded that the SLA had waived its right
to Federal arbitration and dismissed the complaint without ruling on
the merits of the case.
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.
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 format (e.g., Braille, large 1 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://www.ed.gov/legislation/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.access.gpo.gov/nara/index.html
Dated: July 15, 2003.
Loretta Petty Chittum,
Acting, Assistant Secretary for Special Education and, Rehabilitative
Services.
[FR Doc. 03-18375 Filed 7-18-03; 8:45 am]
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