40510 Federal Register / Vol. 62, No. 145 / Tuesday, July 29, 1997 / Notices

to the RFP, providing both technical and

cost information.

In August 1993, the Air Force’s

Technical Evaluation Committee (TEC)

met to evaluate the SLA’s proposal

along with the other proposals that were

submitted. Subsequently, the Air Force

contracting officer informed the SLA

that its proposal was determined to be

within the competitive range along with

15 of the original 19 offerors. On

September 16, 1993, the TEC sent a

discussion letter to the SLA and to the

other offerors who were within the

competitive range. Shortly thereafter,

the SLA responded to the Air Force

regarding the questions asked in the

discussion letter.

On September 28, 1993, the SLA filed

a protest with the Air Force’s

contracting officer concerning the Air

Force’s alleged failure to award the SLA

the food service contract following the

determination that it was within the

competitive range. The SLA contends

that, based upon Department of Defense

(DOD) Directive 1125.3 and regulations

of the Secretary of Education (34 CFR

395.33(b)), either the contract must be

awarded to the SLA following a

determination that the SLA is within the

competitive range established by the

contracting office or the contracting

office must consult with the Secretary of

Education regarding its justification for

not doing so. The Air Force never

responded to the SLA’s protest, nor was

the contract awarded to the SLA.

On November 12, 1993, the TEC met

to review the offerors’ responses to

questions asked regarding DOD’s

concerns and determined that 9 of the

13 remaining offerors’ proposals,

including the SLA’s, were acceptable.

Subsequently, the contracting officer

sent a second round of discussion letters

to all 13 offerors, including those that

were deemed technically unacceptable.

The SLA received the second discussion

letter on November 23, 1993, and again

responded, objecting to the Air Force’s

failure to comply with RandolphSheppard requirements. At the same

time, in order to maintain its eligibility

for the award, the SLA fully responded

to all discussion questions.

The TEC again met and conducted a

final technical evaluation, at which time

the SLA’s proposal was determined to

be fully acceptable from a technical

standpoint. However, the contracting

officer later made a determination that

the SLA’s proposal was technically

unacceptable as the result of its

response to a section of the RFP

regarding the use of sighted employees.

Subsequently, a second competitive

range was established by the Air Force’s

contracting officer. Following the

establishment of the second competitive

range, the SLA received from the Air

Force a Determination for Exclusion

letter indicating the exclusion of the

SLA’s proposal. The Air Force’s stated

reasons for the exclusion of the SLA’s

proposal from the second competitive

range were the SLA’s response on the

use of sighted employees at the facility

and the SLA’s higher pricing structure

compared to the other offerors within

the competitive range.

Arbitration Panel Decision

The issues heard by the arbitration

panel were—(1) Whether the Air Force

violated the Randolph-Sheppard Act, 20

U.S.C. 107 et seq.; Air Force regulation

34–2, DOD Directive 1125.3; Section L–

901 of RFP No. F222600–92–R–0156;

and Randolph-Sheppard regulations in

34 CFR 395.33 by its alleged failure to

award the full food service contract to

the SLA and by its alleged failure to

consult with the Secretary of Education

following the determination that the

SLA was within the competitive range;

and (2) Whether the Air Force’s alleged

arbitrary, capricious, and bad faith

conduct violated the Administrative

Procedures Act, 5 U.S.C. 706, and

Federal Acquisition Regulations, 48 CFR

1.602–2(b) and 48 CFR 15.608(a).

As to the first issue, the panel

majority concluded that the process by

which the Air Force determined the

competitive range in March 1994 was

fully in accord with all governing laws

and regulations. Specifically, the

majority members concluded that an

earlier decision by the contracting

officer that 4 of the 19 offerors had

submitted noncomplying proposals,

based upon a review for technical

sufficiency, did not establish a

competitive range within the meaning of

DOD Directive 1125.3 or RandolphSheppard regulations in 34 CFR

395.33(b). The panel majority ruled that

the Air Force determined a competitive

range, as contemplated under the

governing regulations, only after full

cost data was submitted by the 15

remaining offerors, including the SLA,

who were solicited on the basis of their

technically sufficient initial

submissions. The panel majority

concluded the SLA was properly

excluded from the final competitive

range because its proposal was not

competitive in comparison to the

numerous proposals offering lower

costs.

One panel member dissented

regarding this part of the majority

opinion.

The panel members unanimously

ruled that the Air Force violated the

Randolph-Sheppard Act and applicable

regulations by excluding the SLA from

the competitive range, in part, because

of its alleged failure to give the

assurance required concerning

minimizing the employment of sighted

persons at the cafeteria facility. The

panel ruled that compliance issues

raised by this requirement should be

addressed through pre-contract

negotiations with the contractor and not

by exclusion from the bid process. The

majority of the panel ruled, however,

that this action by the Air Force was a

harmless error inasmuch as the SLA’s

proposal had been properly excluded on

other grounds.

The views and opinions expressed by

the panel do not necessarily represent

the views and opinions of the U.S.

Department of Education.

Dated: July 23, 1997.

Judith E. Heumann,

Assistant Secretary for Special Education and

Rehabilitative Services.

[FR Doc. 97–19865 Filed 7–28–97; 8:45 am]

BILLING CODE 4000–01–P

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.

SUMMARY: Notice is hereby given that on

April 4, 1997, an arbitration panel

rendered a decision in the matter of

Robert Smith v. Michigan Commission

for the Blind (Docket No. R–S/96–4).

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, Robert

Smith.

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, 600 Independence Avenue,

SW., Room 3230, Mary E. Switzer

Building, Washington, DC 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.

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.
Federal Register / Vol. 62, No. 145 / Tuesday, July 29, 1997 / Notices 40511

Background

This dispute arose as the result of the

revocation of Mr. Robert Smith’s

vending license by the Michigan

Commission for the Blind, the State

licensing agency (SLA). The SLA

alleged that Mr. Smith failed to comply

with several vending facility program

rules governing the operation and

administration of the Michigan Business

Enterprise Program.

Mr. Smith had operated facilities in

the SLA’s vending facility program

since May, 1987. His most recent

assignment was the Mason Building

Cafeteria, which he operated from

September 1993 until his license

revocation, which was effective June 16,

1995.

The SLA alleged that Mr. Smith failed

to—(1) Furnish reports in a proper

manner; (2) pay set-aside fees in a

timely fashion by the required due date;

(3) operate the facility in accordance

with applicable health laws and rules;

(4) cooperate with commission

representatives in the performance of

official duties and responsibilities; and

(5) pay food suppliers in a timely

manner in accordance with applicable

credit policies.

On June 23, 1995, Mr. Smith filed a

request with the SLA for a full

evidentiary hearing stating that he had

complied with all applicable rules and

regulations concerning the Mason

Building Cafeteria. A State fair hearing

was held on January 4, 1996.

On January 19, 1996, an

Administrative Law Judge (ALJ)

recommended that, based on the hearing

testimony, Mr. Smith’s license not be

revoked and that the SLA continue to

assist him with respect to the

deficiencies relating to the management

and operation of the Mason Building

Cafeteria.

By letter dated March 6, 1996, Mr.

Smith was informed that the Michigan

Commission for the Blind Board of

Directors on February 19, 1996, rejected

the recommendation of the ALJ that

complainant’s license not be revoked.

This decision constituted final agency

action.

Mr. Smith sought review of this

decision by a Federal arbitration panel.

A hearing on this case was held on

August 1, 1996.

Arbitration Panel Decision

The issues before the arbitration panel

were—(1) Whether the SLA’s action in

revoking Mr. Smith’s license to operate

the Mason Building Cafeteria was in

accordance with the RandolphSheppard Act (the Act), implementing

regulations, and State rules and

regulations; and (2) whether the SLA

engaged in undue harassment and

caused injury to the complainant by his

license revocation and the closing of the

cafeteria.

A majority of the panel ruled that Mr.

Smith was in violation of the Act,

implementing regulations, and State

rules and regulations by reason of his

failure to furnish reports as required and

to pay set-aside fees. In addition, the

majority of the panel found that Mr.

Smith did not operate the facility in

accordance with health laws and rules.

Not only was he in violation of the laws

administered by the county health

department, but he failed to meet the

health and safety standards of the SLA.

Mr. Smith also failed to follow specific

instructions concerning sanitation and

disposal of waste products and to pay

for merchandise in accordance with the

terms of credit of his suppliers.

Further, the majority of the arbitration

panel stated that the allegation of

harassment had been carefully

examined and found to be without

merit. There had been no showing

through testimony or evidence that Mr.

Smith was treated disparately or that the

rules were applied to him in an arbitrary

or capricious manner.

The majority of the panel concluded

that the SLA’s action in revoking Mr.

Smith’s license was in accordance with

the Act, the implementing regulations,

and State rules and regulations and that

Mr. Smith was not subjected to undue

harassment in the operation of his

facility.

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: July 23, 1997.

Judith E. Heumann,

Assistant Secretary for Special Education and

Rehabilitative Services.

[FR Doc. 97–19866 Filed 7–28–97; 8:45 am]

BILLING CODE 4000–01–P

DEPARTMENT OF ENERGY

[FE Docket No. 97–36–NG]

Office of Fossil Energy; Coastal Gas

Marketing Company; Order Granting

Long-Term Authorization To Import

Natural Gas From Canada

AGENCY: Office of Fossil Energy, DOE.

ACTION: Notice of order.

SUMMARY: The Office of Fossil Energy of

the Department of Energy gives notice

that it has issued an order granting

Coastal Gas Marketing Company (CGM)

long-term authorization to import up to

5 MMcf of natural gas of Canadian

natural gas for a period of ten years,

beginning on November 1, 1997, under

the terms and conditions of a letter

agreement dated February 20, 1997,

with Ranger Oil Limited. This natural

gas may be imported at Niagara Falls,

New York, or at alternative border

points with transportation facilities

accessible by CGM.

This order is available for inspection

and copying in the Office of Natural Gas

& Petroleum Import and Export

Activities docket room, 3F–056,

Forrestal Building, 1000 Independence

Avenue, SW., Washington, DC 20585,

(202) 586–9478. The docket room is

open between the hours of 8:00 a.m. and

4:30 p.m., Monday through Friday,

except Federal holidays.

Issued in Washington, D.C., July 7, 1997.

Wayne E. Peters,

Manager, Natural Gas Regulation, Office of

Natural Gas and Petroleum Import and Export

Activities, Office of Fossil Energy.

[FR Doc. 97–19918 Filed 7–28–97; 8:45 am]

BILLING CODE 6450–01–P

DEPARTMENT OF ENERGY

[FE Docket No. 97–41–NG]

Office of Fossil Energy; Coenergy

Trading Company; Order Granting

Long-Term Authorization To Export

Natural Gas To Canada For

Subsequent Re-Import To The United

States

AGENCY: Office of Fossil Energy, DOE.

ACTION: Notice of order.

SUMMARY: The Office of Fossil Energy of

the Department of Energy gives notice

that it has issued DOE/FE Order No.

1280 on June 20, 1997, granting

CoEnergy Trading Company a ten-year

authorization to export up to 80,000 Mcf

per day (29.2 Bcf annually) to Canada

for re-import to the United States. The

term of the authorization is for a period

commencing November 1, 1998, through

October 31, 2008. This gas may be

exported from the United States at the

existing interconnection of TransCanada

PipeLines Limited and Great Lakes Gas

Transmission Limited Partnership near

St. Clair, Michigan, and re-imported

into the United States at the

interconnection of the Trans Quebec

and Maritimes Pipeline and the

proposed Portland Natural Gas

Transmission System near Pittsburg,

New Hampshire.

This order is available for inspection

and copying in the Office of Natural Gas

& Petroleum Import and Export