99-32669. Arbitration Panel Decision Under the Randolph-Sheppard Act

[Federal Register Volume 64, Number 241 (Thursday, December 16, 1999)]
[Notices]
[Pages 70229-70230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32669]


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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 September 25, 1998, an 
arbitration panel rendered a decision in the matter of David J. Stewart 
v. Alabama Department of Rehabilitation Services (Docket No. R-S/97-
12). 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, David J. Stewart.

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: [phone]. 
If you use a telecommunications device for the deaf (TDD), you may call 
the TDD number at [phone].
    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.

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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 improper denial of Mr. David J. 
Stewart's request to bid on a vending location at Fort McClellan, 
Anniston, Alabama by the Alabama Department of Rehabilitation Services, 
the State licensing agency (SLA). A summary of the facts is as follows: 
In May 1994, the United States Army through the Directorate of 
Contracting issued a solicitation for bids to provide food services at 
Fort McClellan, Anniston, Alabama. The advertised solicitation merely 
referred to the provision of food services. There was no mention that 
the facility was to be operated as a cafeteria-type operation, nor were 
there any restrictions limiting applicants to only persons with 
cafeteria training or experience.
    The SLA issued a memorandum to licensed blind vendors and licensees 
informing them that a bid proposal for the food services contract at 
Fort McClellan, Anniston, Alabama was available. The successful bidder 
would be involved in a joint venture with KCA, a private food service 
company that would be responsible for the operation of three 1,000-
personnel dining facilities serving three meals per day, seven days per 
week, and one 500-personnel dining facility serving three meals a day, 
Monday through Friday. The SLA listed the operation of a food service 
facility as required experience.
    The complainant, David J. Stewart, submitted his bid application 
along with 12 other applicants. The complainant, who operated a vending 
route, did not have any prior experience at that time in operating a 
cafeteria. However, in 1990 Mr. Stewart and five other blind licensees 
completed a cafeteria training program conducted by the E. H. Gentry 
Technical Facility under the auspices of the SLA.
    Following the close of the bidding process, the selection 
committee, which included SLA staff and members of the Committee of 
Blind Vendors, reviewed the applicants' eligibility, qualifications, 
and experience. In addition, each applicant was given points for vendor 
appraisals and seniority. The selection committee awarded the Fort 
McClellan cafeteria food service to the vendor who had received the 
highest total number of points.
    Mr. Stewart requested and received a State evidentiary fair hearing 
on this matter on February 7, 1997. In April 1997, the Hearing Officer 
affirmed the SLA's decision to award the Fort McClellan facility to 
another vendor. The SLA adopted the Hearing Officer's decision as final 
agency action, and it is this decision that Mr. Stewart sought to have 
reviewed by a Federal arbitration panel. A Federal arbitration hearing 
on this matter was held on July 30, 1998.

Arbitration Panel Decision

    The issue before the arbitration panel was whether the Alabama 
Department of Rehabilitation Services violated its policies and 
procedures governing the Business Enterprise Program of Alabama during 
the advertisement and selection of a vendor/manager for the Fort 
McClellan facility.
    The majority of the panel found that there was no evidence to 
support the complainant's allegations. Specifically, the panel found 
that the SLA's announcement of the bid opening at the Fort McClellan 
facility tracked the language of the United States Army's solicitation 
for food service and could not be construed as misleading. The panel 
found that it was not within the SLA's authority to unilaterally alter 
the terms of the solicitation or set aside its own job qualifications. 
The majority also found that the selection of the members to serve on 
the selection committee was consistent with and conducted in accordance 
with existing procedures and practices that had been in effect for 
years without any showing of prejudice to the complainant. Further, the 
panel found that the successful applicant, who had the highest total 
number of points among the applicants considered and was unanimously 
selected as the manager of the Fort McClellan facility, had food 
service experience as advertised in the United States Army's 
solicitation. The selection committee fully considered Mr. Stewart's 
completion of a cafeteria training program, which was a factor, but was 
not an employment guarantee as complainant's position implied.
    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: December 10, 1999.
Judith E. Heumann,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 99-32669 Filed 12-15-99; 8:45 am]
BILLING CODE 4000-01-P