Arbitration Panel Decision Under the Randolph-Sheppard Act

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 May 21, 1998, an arbitration

panel rendered a decision in the matter of Louisiana Department of

Social Services, Rehabilitation Services v. U.S. Department of Defense,

Department of the Air Force (Case No. R-S/97-3. 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, Louisiana Department

of Social Services, Rehabilitation Services.

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 D.C. 20202-2738. Telephone: (202) 205-9317.

Individuals who use a telecommunications device for the deaf (TDD) may

call the TDD number at (202) 205-8298.

Individuals with disabilities may obtain this document in an

alternate 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 either of the

following sites:

http://ocfo.ed.gov/fedreg.htm

http://www.ed.gov/news.html

To use the PDF you must have the Adobe Acrobat Reader Program with

Search, which is available free at either of the previous sites. If you

have questions about using the 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.

SUPPLEMENTARY INFORMATION: Pursuant to the Randolph-Sheppard 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 United States

Department of Defense, Department of the Air Force (Air Force) to renew

an expiring food service contract with the Louisiana Department of

Social Services, Rehabilitation Services, the State licensing agency

(SLA).

The Air Force operates Barksdale Air Force Base (Barksdale) in

Louisiana. On March 29, 1994, the Air Force awarded a food service

attendant services contract to the SLA. The contract was awarded on a

non-competitive basis pursuant to the Randolph-Sheppard Act (20 U.S.C.

107 et seq.) The contract was for a six-month period with two one-year

options. A blind licensee was chosen to manage the facility.

By memorandum dated July 8, 1996 the Air Force proposed ``to offer

the reprocurement solicitation'' for the food service attendant

services contract to the SLA as a non-competitive acquisition. The

period for this reprocurement was from October 1, 1996 through

September 30, 1997 with four one-year options. However, on August 23,

1996, the Contracting Officer for the Air Force sent the blind licensee

a memorandum stating that the Air Force viewed the priority provisions

of the Randolph-Sheppard Act (the Act) as not being applicable to the

contract. The Air Force further stated that the solicitation for the

contract would be issued as a competitive acquisition set-aside for

small businesses.

Thereafter, the SLA's current contract was extended for an

additional six-month period until March 31, 1997 to allow a

solicitation for the contract to be issued on a competitive basis, with

a set-aside for small businesses. The SLA filed a protest of this

action with the Air Force. The Air Force rejected the protest by

memorandum dated September 24, 1996. The Air Force's objection stated

in part that the contract merely supported the Air Force's operation of

the dining facility. The Air Force concluded that the operation of the

dining hall resided with the Air Force. The Air Force's position was

that the Randolph-

[[Page 32031]]

Sheppard Act did not apply to food service mess attendant services.

Specifically, the Air Force said that individual tasks such as mess

attendant, janitorial services, or grounds maintenance that support the

Air Force's operation of a dining facility are not covered by the

Randolph-Sheppard Act.

On October 4, 1996, the SLA lodged a protest with the General

Accounting Office. The Air Force responded to this protest on October

9, 1996 seeking its dismissal. The General Accounting Office dismissed

the protest on the basis that the appropriate method for resolution of

the SLA's dispute was through the arbitration process pursuant to

section 107d-2 of the Randolph-Sheppard Act and its implementing

regulations in 34 CFR part 395.

Subsequently, the SLA requested that a Federal arbitration panel be

convened to hear this dispute. A hearing of this matter was held on

December 17, 1997.

Arbitration Panel Decision

The issue before the arbitration panel was whether the contract for

the food service attendant services at Barksdale represented a contract

for the operation of a cafeteria pursuant to the Randolph-Sheppard Act

and implementing regulations.

The arbitration panel ruled in a majority opinion that the contract

was not for the operation of a cafeteria. Referencing the language in

the priority section of the Act, and applying a plain meaning approach

to the word ``operation,'' the arbitration panel reasoned that the

issue should be based on a determination of who controls food cost and

food quality. The panel determined that this must be done on a case-by-

case basis. Therefore, after careful and detailed comparison of the

responsibilities of the blind licensee and of the Air Force, the panel

concluded that the Air Force was operator of the cafeteria at Barksdale

and that the priority provisions under the Act did not apply.

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: June 9, 1999.

Curtis L. Richards,

Acting Assistant Secretary for Special Education and Rehabilitative

Services.

[FR Doc. 99-15063 Filed 6-14-99; 8:45 am]

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