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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 16,1999, and August 13, 1999, an arbitration panel rendered decisions on both merit and remedy in the matter of                         *James E. Waldie*                         v.                         *Alabama Department of Rehabilitation Services (Docket No. R-S/97-13).*                         This panel was convened by the U.S. Department of Education pursuant to 20 U.S.C. 107d-1(a) upon receipt of a complaint filed by petitioner, James E. Waldie.                     

# 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.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 improper denial by the Alabama Department of Rehabilitation Services, the State licensing agency (SLA), of Mr. James E. Waldie's request to bid on a full food service vending facility at Fort McClellan, Anniston, Alabama. A summary of the facts is as follows: In April 1996, the SLA informed licensed blind vendors of an opportunity to manage a full food service vending facility at Fort McClellan, Anniston, Alabama. Twelve persons bid on the Fort McClellan vending facility including Mr. James E. Waldie. On April 23, 1996, the selection committee, which included members of the Elected Committee of Blind Vendors, met to make the selection for the Fort McClellan vending facility. Following the selection committee's evaluation, they unanimously awarded the Fort McClellan location to another vendor. The decision to award the location to another vendor rather than complainant was based upon the successful vendor receiving the highest total number of points of any applicant, including additional points for seniority.

Mr. Waldie was informed of the SLA's decision to award the bid to another vendor for the Fort McClellan vending facility. Complainant requested that the SLA convene a full evidentiary hearing on this matter, which was held on January 2, 1997. 

Following the hearing, the hearing officer affirmed the selection committee's decision to award the Fort McClellan bid to the other vendor, and the SLA adopted the hearing officer's decision as final agency action. It is this decision that complainant sought to have reviewed by a Federal arbitration panel. An arbitration panel heard this matter on November 16, 1998, concerning the merits of the case and on May 26, 1999, regarding the remedy given to Mr. Waldie. 

## Arbitration Panel Decision 

                    The issue before the arbitration panel was whether the Alabama Department of Rehabilitation Services violated the policies and procedures governing the Business Enterprise Program of Alabama during the selection of a vendor/manager for the Fort McClellan, Anniston, Alabama facility pursuant to the Act (20 U.S.C. 107*et seq.*) and the implementing regulations (34 CFR part 395).                 

In ruling on the merits of the case, a majority of the panel determined that the successful bidder should have been disqualified since that vendor did not fulfill the training requirements for managing a full food service operation such as the Fort McClellan vending facility. In reaching that conclusion, the majority of the panel noted that the SLA had sponsored a special 18-week program dedicated solely to cafeteria operations and had stated that specific cafeteria training was a prerequisite for any individual to be selected for a cafeteria facility under the Business Enterprise Program. 

                    The majority of the panel further noted that Mr. Waldie had completed this training while the successful bidder for the Fort McClellan vending facility had never taken this or similar cafeteria training. The majority of the panel concluded that, since the full food service operation at Fort McClellan was the equivalent of a cafeteria, the                           ( print page 30094)                        successful bidder should have been disqualified for lack of training. Similarly the panel ruled that the successful bidder lacked food preparation experience and, therefore, did not meet the experience requirements for managing a full food service operation.                 

One panel member dissented. 

                    In ruling on the question of remedy, a majority of the panel determined that Mr. Waldie did not prove under the facts of the case that he was entitled to damages. The panel ruled that had the successful bidder been disqualified, there was another individual with a higher score than Mr. Waldie who would have been chosen as the successful bidder for the Fort McClellan food service operation. The panel noted both the Eleventh Amendment and the Eleventh Circuit Court of Appeals decision in                     *Georgia Department of Human Resources*                     v.                     *Nash*                     915 F.2d 1482 (11th Cir. 1990) barring the award of damages.                 

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 4, 2000.

Judith E. Heumann, 

Assistant Secretary for Special Education and Rehabilitative Services. 

[FR Doc. 00-11593 Filed 5-9-00; 8:45 am] 

BILLING CODE 4000-01-P