E7-12138. Arbitration Panel Decision Under the Randolph-Sheppard Act

AGENCY:

Department of Education.

ACTION:

Notice of arbitration panel decision under the Randolph-Sheppard Act.

SUMMARY:

The Department of Education (Department) gives notice that on October 16, 2006, an arbitration panel rendered a decision in the matter of Terry Ward v. Ohio Rehabilitation Services Commission, Bureau of Services for the Blind (Case No. R-S/05-1). This panel was convened by the Department under 20 U.S.C. 107d-1(a), after the Department received a complaint filed by the petitioner, Terry Ward.

FOR FURTHER INFORMATION CONTACT:

You may obtain a copy of the full text of the arbitration panel decision from Suzette E. Haynes, U.S. Department of Education, 400 Maryland Avenue, SW., room 5022, Potomac Center Plaza, Washington, DC 20202-2800. Telephone: [phone]. If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service at 1-800-877-8339.

Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Under section 6(c) of the Randolph-Sheppard Act (the 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.

Background

Terry Ward (complainant) alleged violations by the Ohio Rehabilitation Services, Bureau of Services for the Blind, the State Licensing Agency (SLA) regarding the Act, the implementing regulations in 34 CFR part 395, and State rules and regulations surrounding the selection process utilized by the SLA to fill a vacancy at Facility #531 located at the Wright-Patterson Air Force Base in Dayton, Ohio.

Summary

On March 21, 2003, the SLA announced a vacancy at Facility #531, a collection of four bagel shops located in buildings 28, 556, 558, and 560 at the Wright-Patterson Air Force Base in Dayton, Ohio. The bid announcement indicated that all applicants were to submit a business plan with their application. On April 1, 2003, complainant applied for a position at Facility #531 and complied with all aspects of the bid announcement. Following the bid closing, complainant and another vendor were both being considered for Facility #531.

Complainant alleged that the SLA applied its transfer and promotion policies incorrectly. Complainant contended that there are six specific criteria that the SLA normally uses to rate candidates on a scale of 1 to 10. Additionally, an interview is also required. Complainant alleged that the SLA's selection committee used a different scoring system, rating each of the criteria on a scale of 1 to 100 instead of 1 to 10.

Complainant further alleged that a member of the selection committee had a conflict of interest. Specifically, complainant alleged that the selection committee member was interested in becoming the manager of the location that would be vacated by the other candidate, thus, making the selection committee biased toward the other candidate to be named the manager of Facility #531. Complainant asserted that his scores in training and the fact that he has 120 semester hours of college education made him the more qualified candidate for Facility #531.

Complainant filed a grievance against the SLA on this matter. A hearing on the grievance was scheduled for March 15, 2004, but was later cancelled. The parties were instructed by the hearing officer to submit to him written briefs on complainant's grievance. On July 23, 2004, after reviewing the briefs, the hearing officer denied complainant's grievance in its entirety. On September 27, 2004, the SLA adopted the hearing officer's order as final agency action. Complainant sought review by a Federal arbitration panel of that decision.

Arbitration Panel Decision

The issue heard by the panel was whether the actions taken by the Ohio Rehabilitation Services Commission, Bureau of Services for the Blind concerning the selection process for Facility #531 at Wright-Patterson Air Force Base were in accordance with the Act, implementing regulations and State rules and regulations regarding the operation or administration of the Randolph-Sheppard vending facility program.

After reviewing all of the records and hearing testimony of witnesses, the panel ruled that the SLA violated the Act, implementing regulations, and State rules and regulations in conducting the selection process for Facility #531. The panel issued a four-part ruling as follows: (1) The SLA must conduct another selection for Facility #531; (2) Individuals who served on the previous panel are ineligible to participate in the new process, and only the complainant and the other vendor are eligible to be considered as candidates; (3) In evaluating the two candidates, the SLA is prohibited from considering the experience of the other vendor who is currently operating Facility #531; and (4) The SLA must reimburse the complainant for all attorney fees and other costs that he incurred with his complaint. The amount must include all cost and fees from the time that the selection committee awarded Facility #531 to the other vendor.

The views and opinions expressed by the panel do not necessarily represent the views and opinions of the Department.

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 the following site: http://www.ed.gov/​news/​fedregister.

To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at [phone].

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.gpoaccess.gov/​nara/​index.html.

Dated: June 14, 2007.

John H. Hager,

Assistant Secretary for Special Education and Rehabilitative Services.