[Federal Register: May 8, 2000 (Volume 65, Number 89)]


[Page 26591-26592]

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 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 


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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 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 


    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]