B-400912.2, Louisiana State Department of Social Services, Louisiana Rehabilitation Services, July 1, 2009
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Decision
Matter of: Louisiana State Department of Social Services, Louisiana Rehabilitation Services
Kevin Monk for the protester.
Vincent A. Salgado, Esq., National Aeronautics and Space Administration, for the agency.
David A. Ashen, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Government Accountability Office
will not consider protest by state licensing agency (SLA) challenging award of
contract for manufacturing support and facilities operation at National
Aeronautics and Space Administration (NASA) facility, on basis that NASA was
required under Randolph-Sheppard Act (RSA) to issue SLA a permit for service of
vending machines and/or allow SLA to submit offer in competition to provide cafeteria
service at NASA facility; RSA establishes mandatory binding arbitration process
at Department of Education to resolve such complaints.
DECISION
The Louisiana State Department of Social Services,
Louisiana Rehabilitation Services (LRS), protests the National Aeronautics and
Space Administration’s (NASA) award of a contract to Jacobs Engineering Group,
Inc., under request for proposals (RFP) No. NNM0838773R, for manufacturing
support and facilities operation at NASA’s Michoud Assembly Facility, New
Orleans, Louisiana. LRS asserts that
NASA failed to comply with the requirements of the Randolph‑Sheppard Act
(RSA). 20 U.S.C. sect. 107 (2000). LRS asserts that NASA was required under the
RSA to issue LRS a permit for service of the vending machines and/or allow LRS
to submit an offer in competition to provide the cafeteria service at the
Michoud Assembly Facility.
The RSA establishes a priority for blind persons
recognized and represented by state licensing agencies (SLA), such as LRS, in
the operation of vending facilities, including cafeterias, in federal
buildings. 20 U.S.C. sect. 107;
34 C.F.R. sect. 395.33(a) (2008). The
RSA has the stated purpose of “providing blind persons with remunerative
employment, enlarging the economic opportunities of the blind, and stimulating
the blind to greater efforts in striving to make themselves self supporting.” 20 U.S.C. sect. 107(a). The RSA directs the Secretary of Education to
designate state agencies responsible for training and licensing blind persons,
20 U.S.C. sect. 107a(a)(2), and provides that “[i]n authorizing the
operation of vending facilities on Federal property, priority shall be given to
blind persons licensed by a State agency.”
20 U.S.C. sect. 107(b). For
purposes of the case here, the RSA includes cafeterias within the definition of
a “vending facility.” 20 U.S.C. sect.
107e(7). With respect to the operation
of cafeterias at federal facilities, the act directs the Secretary of Education
to issue regulations to establish a priority for blind licensees whenever “such
operation can be provided at a reasonable cost with food of a high quality
comparable to that currently provided to employees, whether by contract or
otherwise.” 20 U.S.C. sect. 107d-3(e).
Pursuant to this authority, the Secretary of Education has
promulgated regulations addressing the RSA’s requirements. Among the matters covered by these
regulations are rules governing the relationship between the SLAs and blind
vendors, rules for becoming a designated SLA within the meaning of the act,
procedures for the oversight of SLAs by the Secretary, and rules governing the
relationship between SLAs and other federal agencies. 34 C.F.R. part 395. With respect to disputes between SLAs and
federal agencies, both the statute and the regulations provide for the filing
of complaints with the Secretary, which are then to be resolved by binding
arbitration. 20 U.S.C. sect. 107d-1(b); 34
C.F.R. sect. 395.37. Specifically, the
regulation, which closely tracks the language of the statute, provides as
follows:
Whenever any [SLA] determines that any department, agency, or instrumentality of the United States which has control of the maintenance, operation, and protection of Federal property is failing to comply with the provisions of the Act or of this part and all informal attempts to resolve the issues have been unsuccessful, such licensing agency may file a complaint with the Secretary.
34 C.F.R. sect. 395.37(a).
An arbitration panel would then be established to resolve such SLA
complaints, and its decision will be “final and binding,” subject to appeal and
review. 34 C.F.R. sect. 395.37(b).
We have interpreted the RSA and its implementing regulations as vesting authority with the Secretary of Education regarding SLA complaints concerning a federal agency’s compliance with the RSA. Washington State Dept. of Servs. for the Blind, B‑293698.2, Apr. 27, 2004, 2004 CPD para. 84 at 3-5; Mississippi State Dept. of Rehabilitation Servs., B-250783.8, Sept. 7, 1994, 94-2 CPD para. 99 at 3. In our view, this means that such complaints are subject to the RSA’s binding arbitration provisions and are not for consideration by our Office under its bid protest jurisdiction.
Maryland State Dept. of Education, B-400583,
B-400583.2, Nov. 7, 2008, 2008 CPD para. 209 at 5. Our view in this regard reflects our more general
view that where, as here, Congress has vested oversight and final
decision-making authority in a particular federal official or entity, we will
not consider protests involving issues subject to review by that official or
entity. Washington State Dept. of
Servs. for the Blind, supra; see, e.g., High Point
Sec., Inc.--Recon. and Protest, B-255747.2, B‑255747.3, Feb. 22,
1994, 94-1 CPD para. 169 at 2 (determinations by the Small Business Administration
under the certificate of competency program pursuant to 15 U.S.C. sect. 637(b)(7))
(2000); ARA Envtl. Servs., Inc., B-254321, Aug. 23, 1993, 93-2 CPD para. 113
at 2 (protest of award under the Javits‑Wagner-O’Day Act, 41 U.S.C. sections
46-48c (2000)).
LRS asserts that its Randolph-Sheppard Vending Program has
priority under the RSA for the provision of vending facilities and food
services on all federal property (in Louisiana), and that NASA was required
under the RSA to issue LRS a permit for service of the vending machines and/or
allow LRS to submit an offer in competition to provide the cafeteria service at
the Michoud Assembly Facility. Protest
at 1. This assertion clearly concerns NASA’s
alleged failure to comply with the provisions of the RSA, and the RSA provides
for binding arbitration. See 34 C.F.R.
sect. 395.37(a). Accordingly, the
matter is not for consideration by our Office under our bid protest function.
The protest is dismissed.
Daniel I. Gordon
Acting General Counsel