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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 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                               ( print 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 

                        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.htmhttp://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 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                           ( print page 30577)                        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