Washington State Department of Services for the Blind, B-293698.2, April 27, 2004

B-293698.2 Apr 27, 2004 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights The Washington State Department of Services for the Blind (WSDSB) protests the elimination of its proposal from consideration under request for proposals (RFP) No. W911S803R0001, issued by the Department of the Army for full food services at Fort Lewis, Washington. We dismiss the protest. View Decision B-293698.2, Washington State Department of Services for the Blind, April 27, 2004 Decision Matter of: Washington State Department of Services for the Blind File: B-293698.2 Date: April 27, 2004 Shelly Marie Martin, Esq., and Andrew D. Freeman, Esq., Brown Goldstein Levy, for the protester. Maj. Gregg A. Engler, Department of the Army, for the agency. David A. Ashen, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest by state licensing agency (SLA) for the blind challenging the elimination of its proposal from consideration under request for proposals issued pursuant to the Randolph-Sheppard Act is dismissed; General Accounting Office will not consider protests from SLAs because arbitration procedures are provided for under the Act, and decisions of the arbitration panel are binding on the parties involved. DECISION The Washington State Department of Services for the Blind (WSDSB) protests the elimination of its proposal from consideration under request for proposals (RFP) No. W911S8'03'R'0001, issued by the Department of the Army for full food services at Fort Lewis, Washington. We dismiss the protest. The RFP here advised that this procurement would be conducted pursuant to the Randolph-Sheppard Act (the 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. 107 (2000); 34 C.F.R. 395.33(a) (2003). Thus, while the RFP generally provided for the solicitation to be set aside for small businesses, it indicated that the Washington State SLA would also be permitted to submit a proposal. Further, in accordance with the Act's implementing regulations, the RFP stated that, if the proposal submitted by the SLA were found to be within the competitive range for the acquisition, and is included among the proposals that have a reasonable chance for award, the government would enter into negotiations only with the SLA. RFP at M-117; 34 C.F.R. 395.33(b). WSDSB is the designated SLA for the procurement. WSDSB submitted the only timely proposal in response to the solicitation. After an initial evaluation by the Army, WSDSB's proposal was –eliminated from further consideration.— Army Letter to WSDSB, Feb. 5, 2004. According to the notice to WSDSB, the firm's proposed price was determined to be excessive when compared to current pricing and the independent government estimate.[1] After being debriefed, WSDSB filed this protest. WSDSB challenges the Army's determination that its price was excessive. The Army seeks dismissal of the protest on the basis that the authority for resolving disputes between SLAs and contracting agencies has been placed with the Secretary of Education. 20 U.S.C. 107d-1(b); 34 C.F.R. 395.37(a). According to the Army, the Act anticipates that complaints by SLAs about an agency's handling of a procurement conducted pursuant to the Act will be addressed through arbitration. In this regard, the Act vests authority for administering and overseeing its requirements solely with the Secretary. 20 U.S.C. 107 et seq. Pursuant to this authority, the Secretary has promulgated comprehensive regulations addressing all aspects of the Act's requirements. Among the matters covered by these regulations are rules governing the relationship between SLAs and blind vendors in each state, rules for becoming a designated SLA within the meaning of the Act, procedures for oversight of the SLAs by the Secretary, and rules governing the relationship between the SLAs and all federal government agencies. 34 C.F.R. part 395. The Secretary's authority also includes conducting arbitration proceedings. In this regard, the Act provides, in relevant part, as follows: Whenever any [SLA] determines that any department, agency, or instrumentality of the United States that has control of the maintenance, operation, and protection of Federal property is failing to comply with the provisions of [the Act] or any regulations issued thereunder . . . such [SLA] may file a complaint with the Secretary who shall convene a panel to arbitrate the dispute . . . and the decision of such panel shall be final and binding on the parties except as otherwise provided in this chapter. 20 U.S.C. 107d-1(b).