[Federal Register: December 16, 1999 (Volume 64, Number 241)]
[Page 70229-70230]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



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 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: (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

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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.


    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]