[Federal Register Volume 65, Number 93 (Friday, May 12, 2000)]
[Notices]
[Pages 30575-30577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11914]


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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 March 31, 1999, an arbitration 
panel rendered a decision in the matter of West Virginia Department of 
Education and the Arts, Division of Rehabilitation Services v. U.S. 
Department of Labor, Mine Safety and Health Administration (Docket No. 
R-S/97-14). This panel was

[[Page 30576]]

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 West 
Virginia Department of Education and the Arts, Division of 
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 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

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    Note: The official version of this document is the document 
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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 Labor in the termination of the contract of the West Virginia 
Department of Education and the Arts, Division of Rehabilitation 
Services, the State licensing agency (SLA), to operate a facility at 
the National Mine Health and Safety Academy in Beckley, West Virginia. 
A summary of the facts is as follows: On July 13, 1997, Mr. David 
Naylor, Director of the West Virginia Society for the Blind (Society), 
received a letter dated July 2, 1997, from Mr. William Och, the 
Contracting Officer for the National Mine Health and Safety Academy in 
Beckley. In the letter, which was entitled ``Notice of Partial 
Termination of Contract Number J2566023 for Food Service at the 
National Mine Health and Safety Academy, Beaver, WV,'' Mr. Och was 
informed that a substantial part of the Society's food service would be 
terminated effective July 7, 1997, for the remainder of the Federal 
fiscal year. The reason given for the termination was simply ``the 
Government's convenience.''
    The SLA alleged that the contract was terminated with less than 1 
business day's notice since the Fourth of July holiday in that year 
fell on Friday. The SLA further alleged that the actions taken by the 
U.S. Department of Labor, Mine Safety and Health Administration, in 
terminating the SLA's contract, violated the substantive and procedural 
provisions of the Act and implementing regulations.
    The SLA filed a request for Federal arbitration dated July 15, 
1997, which was received by the Department on July 24, 1997. While the 
complaint was under review by the Department, the parties were 
encouraged to meet and discuss the issues in an effort to reach an 
amicable settlement.
    To that end, the parties successfully negotiated a resolution 
concerning two of the three issues in the SLA's original complaint. The 
two issues settled were: (1) That the SLA through its agent, the West 
Virginia Society for the Blind, and the Mine Safety and Health 
Administration would negotiate and enter into a contract providing for 
the operation of the cafeteria and vending facilities at the Academy. 
The contract would begin on or before November 1, 1997. The contract 
would provide for a term of 120 days with ongoing options for renewal 
on a 30-day basis. (2) For the duration of the previously-named 
contract, the Mine Safety and Health Administration would permit no 
other entity to provide food or vending services at the Academy unless 
the right to furnish those food or vending services would be first 
offered to the West Virginia Society for the Blind. If the Society was 
unable to provide those services, it would advise the Mine Safety and 
Health Administration.
    The SLA filed a request to proceed with arbitration on the 
remaining issue in the complaint. A Federal arbitration hearing on this 
matter was held on September 18, 1998.

Arbitration Panel Decision

    The central issue before the arbitration panel was whether the Mine 
Safety and Health Administration may seek bids for the operation of the 
food and vending facilities contract at the National Mine Health and 
Safety Academy while a contractor is already in place pursuant to the 
provisions of the Act (20 U.S.C. 107 et seq.) and the implementing 
regulations (34 CFR part 395).
    The majority of the panel ruled that the sole purpose of the Act is 
to benefit blind persons through employment as entrepreneurs on all 
Federal property. Additionally, it is a requirement of the Act that a 
priority be given to blind vending facilities on all Federal property, 
and it is the obligation of every Federal department, agency, and 
instrumentality to ensure that one or more vending facilities is 
established on all Federal property.
    In its complaint, the SLA argued that the Mine Safety and Health 
Administration, the respondent, was prohibited from seeking bids 
because of the priority provisions of the Act. Conversely, the Mine 
Safety and Health Administration responded that the Act and 
implementing regulations do not expressly prohibit it from soliciting 
bids.
    After review of all evidence and arguments, the majority of the 
panel ruled that the Mine Safety and Health Administration was entitled 
to seek bids. The panel concluded that if the SLA submitted a bid to 
the Mine Safety and Health Administration, then the priority provisions 
of the Act and regulations would apply. The panel further ruled that 
the priority provisions of the Act do not affect the bidding process 
and are only pertinent after the bidding process has been completed. 
Specifically, the panel found that there is no requirement in the Act 
that precludes the contracting agency from soliciting for the food 
service operation merely because a blind vendor was previously 
operating the facility under a contract. Consequently, the Mine Safety 
and Health Administration is free to seek bids as long as it ultimately 
gives preferential treatment to a qualified blind vendor consistent 
with the Act.
    Additionally, the panel ruled that if the SLA demonstrates that it 
can provide food service at comparable cost and of comparable high 
quality as that available from other providers, the Act's priority 
provisions would apply. Therefore, this would mean that at the end of 
the contract period with the SLA, if the SLA submits a new contract 
proposal that is within the competitive

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range, the SLA is entitled to the contract. Further, the Mine Safety 
and Health Administration may negotiate directly with the SLA without 
opening the competitive bidding process.
    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 8, 2000.
Judith E. Heumann,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 00-11914 Filed 5-11-00; 8:45 am]
BILLING CODE 4000-01-P