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###### Department of Education

# AGENCY:

Department of Education. 

# ACTION:

Notice of arbitration panel decision under the Randolph-Sheppard Act. 

# SUMMARY:

                        Notice is hereby given that on November 16, 1998, an arbitration panel rendered a decision in the matter of                         *Alabama Department of Rehabilitation Services*                        v.                         *U.S. Department of Defense, Department of the Air Force (Docket No. R-S/97-4).*                         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 Alabama Department of Rehabilitation Services.                     

# FOR FURTHER INFORMATION CONTACT:

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 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, 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 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 U.S. Department of Defense, Department of the Air Force (Air Force), of the priority provisions of the Act by the exclusion of the proposal submitted by the Alabama Department of Rehabilitation Services, the State licensing agency (SLA), from the competitive range for a full food service contract at Maxwell Air Force Base, Gunter Annex, Alabama. A summary of the facts is as follows: On July 2, 1996, the Air Force issued a request for proposal (RFP) for full food service at Maxwell Air Force Base, Gunter Annex, Alabama. The SLA responded to the RFP as the State licensing agency authorized to administer the Act in Alabama. In the SLA's proposal, a blind person was designated as the State's licensee, and Food Service, Inc. was identified as a subcontractor to the SLA. 

                    The RFP specified that the technical criteria of management, production, quality control and safety would be used to evaluate the proposal. Following the technical evaluation of the proposal by the Air Force, the SLA was informed that its proposal was determined to be unacceptable under the management criteria. In excluding the SLA, the Air Force determined that the SLA's proposal had three primary deficiencies: (1) It failed to provide evidence of the                           ( print page 26592)                        contractor's full understanding of the requirement for maintaining the SIMS computer system for the food service operation, in particular with regard to the contractor's role in providing contractor personnel identifications and passwords. (2) The proposed SIMS Administrator did not have the level of experience required by the solicitation. (3) The alternate SIMS Administrators did not have the experience required by the solicitation.                 

In October 1996, the Air Force issued four clarification/deficiency letters to the SLA requesting that the SLA respond to its concerns. In a letter dated November 20, 1996, the Air Force advised the SLA of its exclusion from the competitive range of the RFP. The letter referred to the three previously stated reasons as the basis for the Air Force's decision.

The SLA received the November 20th letter from the Air Force on November 22 and on November 27 filed a protest against the Air Force with the U.S. General Accounting Office (GAO). The SLA then learned that the Air Force had awarded a contract to a private concessionaire on November 22, 1996. On November 29, the SLA filed a supplemental protest with GAO alleging that the Air Force had violated the Federal Acquisition Regulation, which requires contracting officers to notify in writing an unsuccessful offeror at the earliest practicable time that its proposal is no longer in the competitive range. 

On December 2, 1996, the Air Force filed a request for summary dismissal of the SLA's protest with GAO. On December 12, the SLA received notification that its protest had been dismissed. The SLA filed a request for arbitration with the Secretary of Education concerning this dispute. A Federal arbitration hearing on this matter was held on June 16, 1998. 

## Arbitration Panel Decision 

The central issues before the arbitration panel were: (1) Did the Air Force reasonably and properly evaluate the proposal submitted by the SLA? (2) Did the Air Force comply with the legal requirements to conduct meaningful discussions with the SLA pursuant to the Act and implementing regulations? (3) Did the Air Force comply with the legal requirement to treat all offerors equally? 

The majority of the panel ruled that the record demonstrated that the Air Force technical evaluation team evaluated the SLA's proposal reasonably and in accordance with the terms of the solicitation. The solicitation required that the proposed SIMS Administrator have 3 years experience performing complete system back-ups including daily back-ups, as well as 3 years experience in trouble-shooting the system. The offeror was required to provide resumes and other evidence that substantiated that its proposed SIMS Administrator satisfied this requirement. The record reflects that the SLA failed to do so. 

The panel further found that, in order to show that it was improperly excluded from the competitive range, the burden of proof was on the SLA to show that the determinations concerning the unacceptability of its proposal were unreasonable. The majority of the panel concluded that the evidence failed to meet this burden. Further, the record showed that the Air Force evaluators reasonably reached each determination concerning the technical unacceptability of the SLA's proposal and the Air Force Contracting Officer reasonably excluded the SLA's proposal from the final competitive range. Accordingly, the panel found that the Air Force's evaluation of the SLA's proposal and decision to eliminate the SLA from the competitive range were reasonable, rational, proper, and in accordance with the requirements of the solicitation. 

Concerning the second issue, regarding the alleged failure of the Air Force to conduct meaningful discussions with the SLA, the majority of the panel stated that, when conducting meaningful discussions, an agency merely must direct or lead offerors into areas of their proposals needing amplification. An agency is not obligated to give offerors all-encompassing negotiations, nor is the agency required to rewrite an offeror's proposal. The panel found that, in this procurement, the Air Force on several occasions informed the SLA representatives of the Air Force's concerns with regard to the SLA's SIMS experience and its role in maintaining the system. 

Regarding the third issue, concerning the alleged failure of the Air Force to treat all offerors fairly, the majority of the panel found that the record fully supported the reasonableness of the Air Force's evaluation of the SLA's proposal. The panel further ruled that there was no evidence of unequal or unfair treatment. After fully considering the record, the majority of the panel ruled that the Air Force acted reasonably, properly, and in accordance with the solicitation in evaluating and excluding the proposal submitted by the SLA. Therefore, the complaint was denied. 

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: May 1, 2000. 

Judith E. Heumann, 

Assistant Secretary for Special Education and Rehabilitative Services. 

[FR Doc. 00-11345 Filed 5-5-00; 8:45 am] 

BILLING CODE 4000-01-P