[Federal Register: May 8, 2000 (Volume 65, Number 89)]
[Notices]
[Page 26591-26592]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08my00-44]
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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 November 16, 1998, an
arbitration panel rendered a decision in the matter of Alabama
Department of Rehabilitation Services v. U.S. Department of Defense,
Department of the Air Force (Docket No. R-S/97-4). This panel was
convened by the U.S. Department of Education pursuant to 20 U.S.C.
107d-1(b) upon receipt of a complaint filed by petitioner, the Alabama
Department of Rehabilitation Services.
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
paragraph.
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Note: The official version of this document is the document
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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 violation by the U.S. Department
of Defense, Department of the Air Force (Air Force), of the priority
provisions of the Act by the exclusion of the proposal submitted by the
Alabama Department of Rehabilitation Services, the State licensing
agency (SLA), from the competitive range for a full food service
contract at Maxwell Air Force Base, Gunter Annex, Alabama. A summary of
the facts is as follows: On July 2, 1996, the Air Force issued a
request for proposal (RFP) for full food service at Maxwell Air Force
Base, Gunter Annex, Alabama. The SLA responded to the RFP as the State
licensing agency authorized to administer the Act in Alabama. In the
SLA's proposal, a blind person was designated as the State's licensee,
and Food Service, Inc. was identified as a subcontractor to the SLA.
The RFP specified that the technical criteria of management,
production, quality control and safety would be used to evaluate the
proposal. Following the technical evaluation of the proposal by the Air
Force, the SLA was informed that its proposal was determined to be
unacceptable under the management criteria. In excluding the SLA, the
Air Force determined that the SLA's proposal had three primary
deficiencies: (1) It failed to provide evidence of the
[[Page 26592]]
contractor's full understanding of the requirement for maintaining the
SIMS computer system for the food service operation, in particular with
regard to the contractor's role in providing contractor personnel
identifications and passwords. (2) The proposed SIMS Administrator did
not have the level of experience required by the solicitation. (3) The
alternate SIMS Administrators did not have the experience required by
the solicitation.
In October 1996, the Air Force issued four clarification/deficiency
letters to the SLA requesting that the SLA respond to its concerns. In
a letter dated November 20, 1996, the Air Force advised the SLA of its
exclusion from the competitive range of the RFP. The letter referred to
the three previously stated reasons as the basis for the Air Force's
decision.
The SLA received the November 20th letter from the Air Force on
November 22 and on November 27 filed a protest against the Air Force
with the U.S. General Accounting Office (GAO). The SLA then learned
that the Air Force had awarded a contract to a private concessionaire
on November 22, 1996. On November 29, the SLA filed a supplemental
protest with GAO alleging that the Air Force had violated the Federal
Acquisition Regulation, which requires contracting officers to notify
in writing an unsuccessful offeror at the earliest practicable time
that its proposal is no longer in the competitive range.
On December 2, 1996, the Air Force filed a request for summary
dismissal of the SLA's protest with GAO. On December 12, the SLA
received notification that its protest had been dismissed. The SLA
filed a request for arbitration with the Secretary of Education
concerning this dispute. A Federal arbitration hearing on this matter
was held on June 16, 1998.
Arbitration Panel Decision
The central issues before the arbitration panel were: (1) Did the
Air Force reasonably and properly evaluate the proposal submitted by
the SLA? (2) Did the Air Force comply with the legal requirements to
conduct meaningful discussions with the SLA pursuant to the Act and
implementing regulations? (3) Did the Air Force comply with the legal
requirement to treat all offerors equally?
The majority of the panel ruled that the record demonstrated that
the Air Force technical evaluation team evaluated the SLA's proposal
reasonably and in accordance with the terms of the solicitation. The
solicitation required that the proposed SIMS Administrator have 3 years
experience performing complete system back-ups including daily back-
ups, as well as 3 years experience in trouble-shooting the system. The
offeror was required to provide resumes and other evidence that
substantiated that its proposed SIMS Administrator satisfied this
requirement. The record reflects that the SLA failed to do so.
The panel further found that, in order to show that it was
improperly excluded from the competitive range, the burden of proof was
on the SLA to show that the determinations concerning the
unacceptability of its proposal were unreasonable. The majority of the
panel concluded that the evidence failed to meet this burden. Further,
the record showed that the Air Force evaluators reasonably reached each
determination concerning the technical unacceptability of the SLA's
proposal and the Air Force Contracting Officer reasonably excluded the
SLA's proposal from the final competitive range. Accordingly, the panel
found that the Air Force's evaluation of the SLA's proposal and
decision to eliminate the SLA from the competitive range were
reasonable, rational, proper, and in accordance with the requirements
of the solicitation.
Concerning the second issue, regarding the alleged failure of the
Air Force to conduct meaningful discussions with the SLA, the majority
of the panel stated that, when conducting meaningful discussions, an
agency merely must direct or lead offerors into areas of their
proposals needing amplification. An agency is not obligated to give
offerors all-encompassing negotiations, nor is the agency required to
rewrite an offeror's proposal. The panel found that, in this
procurement, the Air Force on several occasions informed the SLA
representatives of the Air Force's concerns with regard to the SLA's
SIMS experience and its role in maintaining the system.
Regarding the third issue, concerning the alleged failure of the
Air Force to treat all offerors fairly, the majority of the panel found
that the record fully supported the reasonableness of the Air Force's
evaluation of the SLA's proposal. The panel further ruled that there
was no evidence of unequal or unfair treatment. After fully considering
the record, the majority of the panel ruled that the Air Force acted
reasonably, properly, and in accordance with the solicitation in
evaluating and excluding the proposal submitted by the SLA. Therefore,
the complaint was denied.
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 1, 2000.
Judith E. Heumann,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 00-11345 Filed 5-5-00; 8:45 am]
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