Maryland State Department of Education, B-288501; B-288502, August 14, 2001

Maryland State Department of Education, B-288501; B-288502, August 14, 2001 TITLE: Maryland State Department of Education, B-288501; B-288502, August 14, 2001 BNUMBER: B-288501; B-288502 DATE: August 14, 2001 ********************************************************************** Maryland State Department of Education, B-288501; B-288502, August 14, 2001 Decision Matter of: Maryland State Department of Education File: B-288501; B-288502 Date: August 14, 2001 Elliott L. Schoen, Esq., State of Maryland, Office of the Attorney General, for Maryland State Department of Education, Division of Rehabilitation Services, the protester. John D. Inazu, Esq., Department of the Air Force, for the agency. Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protests filed by a state licensing agency for the blind alleging solicitation improprieties in two requests for proposals issued pursuant to the Randolph-Sheppard Act are dismissed because the Act gives authority for review of disputes between federal agencies and state licensing agencies regarding these procurements to the Secretary of Education, not the General Accounting Office. DECISION The Maryland State Department of Education, Division of Rehabilitation Services, challenges the terms of requests for proposals (RFP) Nos. FA4416-01-R-0058 and FA4416-01-R-0059, issued by the Department of the Air Force for food services at Andrews Air Force Base (AFB) and Fort George G. Meade, respectively. The protester alleges that the solicitations violate certain Department of Defense (DOD) Regulations implementing the Randolph-Sheppard Act, 20 U.S.C. sect.sect. 107 et seq. (1994), and violate other DOD policies and guidance related to the Act as well. We dismiss the protests. The RFPs here advised that this procurement would be conducted pursuant to the Randolph-Sheppard Act, which establishes a priority for blind persons recognized and represented by state licensing authorities (SLA) under the terms of the Act, in the award of contracts for, among other things, the operation of cafeterias in federal buildings. 20 U.S.C. sect. 107(b); 34 C.F.R. sect. 395.33(a) (2000). Under the Act's implementing regulations, if a designated SLA submits an offer found to be within the competitive range for the acquisition, award must be made to the SLA. 34 C.F.R. sect. 395.33(b). The protester here is the designated SLA for these procurements. In its protests, the SLA argues that two features of these solicitations violate DOD regulations, policies, and guidance established to ensure compliance with the Randolph-Sheppard Act. The first of these two features is the solicitation provision in both RFPs that states: If the SLA submits a proposal that is included in the final competitive range established by the Contracting Officer (as identified below), the SLA will receive award of the contract . . . . RFP -0058, amend. 3, at 2; RFP -0059, amend. 5, at 2 (emphasis added). The second feature, also in both RFPs, anticipates that during the price evaluation, each offeror's price will be increased by 10 percent, except for offers received from "HUBZone small business concerns, in accordance with FAR [sect.] 52.219-4." RFP -0058, amend. 3, at 3; RFP -0059, amend. 5, at 3. The Air Force seeks dismissal of these protests on the basis that the authority for administering the requirements of the Randolph-Sheppard Act--and specifically for resolving disputes between SLAs and contracting agencies--has been placed with the Secretary of Education. 20 U.S.C. sect. 107d-1(b); 34 C.F.R. sect. 395.37(a). According to the Air Force, the Act anticipates that complaints by SLAs about an agency's handling of a procurement conducted pursuant to the Act will be addressed by arbitration. In response, the SLA argues that the Act's assignment to the Secretary of the authority to resolve disputes between SLAs and contracting agencies does not include disputes about apparent solicitation improprieties. In addition, the SLA contends that the arbitration provisions of the Act, and its implementing regulations, are limited to issues of compliance with the Act itself, while these protests challenge the agency's compliance with other procurement statutes and regulations. DISCUSSION The Randolph-Sheppard Act has the stated purpose of "providing blind persons with remunerative employment, enlarging the economic opportunities of the blind, and stimulating the blind to greater efforts in striving to make themselves self-supporting." 20 U.S.C. sect. 107(a). The Act directs the Secretary of Education to designate state agencies responsible for training and licensing blind persons, and provides that "[i]n authorizing the operation of vending facilities on Federal property, priority shall be given to blind persons licensed by a State agency." 20 U.S.C. sect. 107(b).