Link: GAO Opinion
Agency: National Aeronautics and Space Administration
Disposition: Protest dismissed.
Government Accountability Office will not consider protest by state licensing agency (SLA) challenging award of contract for manufacturing support and facilities operation at National Aeronautics and Space Administration (NASA) facility, on basis that NASA was required under Randolph-Sheppard Act (RSA) to issue SLA a permit for service of vending machines and/or allow SLA to submit offer in competition to provide cafeteria service at NASA facility; RSA establishes mandatory binding arbitration process at Department of Education to resolve such complaints.
General Counsel P.C. Highlight:
LRS asserts that NASA failed to comply with the requirements of the Randolph-Sheppard Act (RSA). LRS asserts that NASA was required under the RSA to issue LRS a permit for service of the vending machines and/or allow LRS to submit an offer in competition to provide the cafeteria service at the Michoud Assembly Facility. The RSA establishes a priority for blind persons recognized and represented by state licensing agencies (SLA), such as LRS, in the operation of vending facilities, including cafeterias, in federal buildings. The RSA 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 The RSA 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. For purposes of the case here, the RSA includes cafeterias within the definition of a vending facility. With respect to the operation of cafeterias at federal facilities, the act directs the Secretary of Education to issue regulations to establish a priority for blind licensees whenever such operation can be provided at a reasonable cost with food of a high quality comparable to that currently provided to employees, whether by contract or otherwise.
GAO has interpreted the RSA and its implementing regulations as vesting authority with the Secretary of Education regarding SLA complaints concerning a federal agency’s compliance with the RSA. This means that such complaints are subject to the RSA’s binding arbitration provisions and are not for consideration by GAO under its bid protest jurisdiction. GAO’s view in this regard reflects a more general view that where, as here, Congress has vested oversight and final decision-making authority in a particular federal official or entity, GAO will not consider protests involving issues subject to review by that official or entity.
LRS asserts that its Randolph-Sheppard Vending Program has priority under the RSA for the provision of vending facilities and food services on all federal property (in Louisiana), and that NASA was required under the RSA to issue LRS a permit for service of the vending machines and/or allow LRS to submit an offer in competition to provide the cafeteria service at the Michoud Assembly Facility. This assertion clearly concerns NASA’s alleged failure to comply with the provisions of the RSA, and the RSA provides for binding arbitration. Accordingly, the matter is not for consideration by GAO under GAO’s bid protest function.