FR Doc 03-31395

[Federal Register: December 22, 2003 (Volume 68, Number 245)]
[Page 71099-71100]
From the Federal Register Online via GPO Access []
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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 gives notice that on April 11, 2003, an 
arbitration panel rendered a decision in the matter of Joseph Urbanek 
v. South Carolina Commission for the Blind (Docket No. R-S/01-7). This 
panel was convened by the U.S. Department of Education, under 20 U.S.C. 
107d-1(a), after the Department received a complaint filed by the 
petitioner, Joseph Urbanek.

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 


    This dispute concerns the alleged failure of the South Carolina 
Commission for the Blind, the State licensing agency (SLA), to properly 
administer the vendor selection process regarding a military mess hall 
dining facility at Fort Jackson, South Carolina, in violation of the 
Act (20 U.S.C. 107 et seq.) and the implementing regulations in 34 CFR 
part 395.
    A summary of the facts is as follows: Complainant, Joseph Urbanek, 
is a licensed Randolph-Sheppard vendor with the South Carolina 
Commission for the Blind. In June 2000, the SLA posted a bid notice 
with a closing date of June 9 for the dining facility at Fort Jackson, 
South Carolina.
    Complainant and four other vendors applied for the Fort Jackson 
opening. The SLA's selection committee interviewed all candidates, 
including Mr. Urbanek, on June 26, 2000. After the interviews, one of 
the other vendors was awarded the Fort Jackson dining facility.
    Complainant alleged that the SLA misapplied its selection criteria 
by refusing to select him to receive the Fort Jackson dining facility 
and instead awarded the location to another experienced blind vendor in 
violation of State rules and regulations. Complainant also alleged that 
the SLA was biased against him in pre-selecting the vendor who was 
awarded the Fort Jackson facility resulting in a denial of his right to 
due process.
    The complainant requested a State fair hearing, which was held on 
November 27, 2000. On February 5, 2001, the hearing officer affirmed 
the SLA's denial of complainant's bid for the Fort Jackson dining 

Arbitration Panel Decision

    The issue heard by the panel was whether the South Carolina 
Commission for the Blind violated the Act, 20 U.S.C. 107 et seq., the 
implementing regulations in 34 CFR part 395, and the State regulations 
by allegedly improperly denying complainant's bid on the military mess 
hall dining facility at Fort Jackson, South Carolina.
    After reviewing all of the records and hearing testimony of 
witnesses, the panel ruled that the SLA's selection committee was not 
biased against the complainant's bid for the Fort Jackson dining 
    Specifically, the complainant alleged that the SLA selection 
committee was biased against him by adding to the five-factor selection 
criteria to include information on each applicant's creditworthiness, 
financial status, prior experience outside the blind vending program, 
and personal references. Also, the complainant objected to Mr. Johnson, 
the successful applicant, serving on a study committee that considered 
and recommended changes in the selection criteria for the Fort Jackson 
dining facility.
    The panel concluded that, based on the evidence and testimony 
presented, the additional information requested by the study committee 
did not have the effect of favoring either applicant. Furthermore, the 
panel determined that Mr. Johnson's decision to serve on the study 
committee at the same time he was submitting a bid for the Fort Jackson 
dining facility did not advance or hinder Mr. Urbanek's bid for the 
same facility. In addition, the panel found that the SLA had a 
legitimate basis to review and improve the selection criteria given 
that the Fort Jackson facility was an important breakthrough for the 
    Finally, the panel determined that the selection committee had 
justification for the final ratings for the bidders. According to the 
panel only three of the rating factors involved judgment. All five 
members rated the complainant lower overall than Mr. Johnson.
    The panel found that there was nothing in the unanimous judgment of 
the selection committee in selecting the blind vendor that required a 
remedy. Both bidders were qualified, but the committee found Mr. 
Johnson to be more qualified. According to the panel, the committee's 
selection of Mr. Johnson was a matter committed to its sound 
discretion. On this basis, the panel denied plaintiff's claim.
    The views and opinions expressed by the panel do not necessarily 
represent the views and opinions of the U.S. Department of Education.

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 3232, Mary E. 
Switzer Building, Washington, DC 20202-2738. Telephone: (202) 205-8536. 
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 

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format (e.g., Braille, large print, audiotape, or computer diskette) on 
request to the contact person listed in the preceding paragraph.

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: 

    To use PDF you must have Adobe Acrobat Reader, which is available 
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Government Printing Office (GPO), toll free, at 1-888-293-6498; or in 
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    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:

    Dated: December 16, 2003.
Robert H. Pasternack,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 03-31395 Filed 12-19-03; 8:45 am]