United States District Court, D. Maryland
MARYLAND STATE DEPARTMENT OF EDUCATION, DIVISION OF REHABILITATION SERVICES
UNITED STATES DEPARTMENT OF EDUCATION, REHABILITATION SERVICES ADMINISTRATION Defendant and PATRICIA HOMAN Defendant Intervenor
MEMORANDUM OF DECISION
CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE.
Court has before it Plaintiffs Amended Complaint for Judicial
Review of Agency Action of the United States Department of
Education Arbitration Panel Under the Randolph-Sheppard Act
20 U.S.C. §§107-107F [ECF No. 8],
Intervenor-Defendant Patricia Homan's Motion to Confirm
and Enforce Arbitration Award [ECF No, 29] and the materials
related thereto. The Court has held a hearing and had the
benefit of the arguments of counsel. The Court has jurisdiction
pursuant to the Randolph-Sheppard Act, 20 U.S.C. §
Randolph-Sheppard Act ("RSA") was enacted by
Congress to "enlarg[e] the economic opportunities of the
blind" by giving them priority in the bidding of
contracts "to operate vending facilities on any Federal
property." 20 U.S.C. § 107. Although the RSA
applies to all federal agencies, Congress charged the
Secretary of the Department of Education ("DOE")
with administering, interpreting, enforcing, and resolving
disputes arising under the RSA. See 20 U.S.C. §§
107(b), 107a, 107d-1.
the RSA, the Secretary designates a State Licensing Agency
("SLA") in each state to issue licenses to
qualified blind persons to operate vending facilities on
federal property. 20 U.S.C. § l07a(a)(5). When a federal
agency procures vending-facility services, it does not
contract directly with a blind vendor. The agency instead
negotiates a contract directly with the SLA or solicits
competitive bids for the contract. 34 C.F.R. §
395.33(b), (d). The RSA also provides for a dispute
resolution process that ultimately may result in an
arbitration panel's decision, which is subject to
judicial review. 20 U.S.C. § 107d-2 (a).
instant dispute arose out of a solicitation for bids for a
vending facility. The solicitation was withdrawn, revised,
and rebid, resulting in two different vendors believing that
they properly won the contract. An arbitration panel reversed
the State agency's decision, which has resulted in this
Enterprise of the Blind ("BEP") operates the blind
vending program in Maryland pursuant to the RSA. It is a unit
of the named Plaintiff, Maryland State Department of
Education, Division of Rehabilitation Services, which is the
SLA and is also referred to in the record as the Division,
DORS, or the State.
Homan ("Ms. Homan") is the Defendant-Intervenor.
She is a licensed vendor in the BEP Program and bid on
BEP's initial solicitation for Vending Facility # 25
("VF25"). She was recommended to the Committee of
Blind Vendors as the winning bidder for VF25, but thereafter,
the solicitation was withdrawn, revised, and rebid, and a
different vendor was selected. Ms. Homan grieved the
agency's bidding process and ultimately initiated the
arbitration proceeding challenging BEP's decision to
withdraw, revise, and reissue the VF25 solicitation.
named Defendant United States Department of Education is a
nominal party only. As part of the agency review process, it
convened the arbitration panel and sponsored the arbitration
that issued the decision that is the subject of this judicial
The Blind Vendor Program
Randolph-Sheppard Act, 20 U.S.C. §§ 107-107f,
adopted in 1936 and amended in 1974, established a
federal-state cooperative program to promote the employment
of blind persons by providing for their operation of vending
facilities at federal buildings. The program is .overseen by
the United States Department of Education, which authorizes
state agencies to implement the program as well as to train
and license blind persons to manage and operate vending
facilities located in federal facilities. States also
administer the application and bidding process by which blind
vendors are awarded the right to operate such facilities.
Maryland State Department of Education, Division of
Rehabilitation Services is designated as Maryland State's
licensing agency (i.e., the SLA).
the unit that operates the blind vending program in Maryland
with the active participation of the Committee of Blind
Vendors ("Committee"). The Committee is comprised
of eight elected vendors, who represent the interests of all
of the licensed vendors. The Committee's responsibilities
(A) participation, with the State agency, in major
administrative decisions and policy and program development,
(B) receiving grievances of blind licensees and serving as
advocates for such licensees, (C) participation, with the
State agency, in the development and administration of a
transfer and promotion system for blind licensees, (D)
participation, with the State agency, in developing training
and retraining programs, and (E) sponsorship, with the
assistance of the State agency, of meetings and instructional
conferences for blind licensees.
20U.S.C. § 107b-l(3).
Bidding for Vendor Facility #25
The Bidding Process
for the assignment of vendors to facilities are set forth in
the State regulations and are also available in the
Administrative Manual. Md. Code. Regs. ("COMAR")
§ 13A.11.04.06C-E. The Administrative
Manual is a policy manual developed by BEP with
the active participation of the Committee, and it establishes
operational procedures for the blind vendor program. COMAR
§ 13 A. 11.04.02(3).
to the Administrative Manual, Section 4, when a vending
facility becomes available for assignment, BEP will
send bid announcements (also referred to as
"solicitations") to all eligible licensed vendors.
The Administrative Manual Section 4.A.3 requires BEP to list
the minimum assignment criteria for each announcement.
order to be assigned a vending facility, the applicant must
meet the general criteria as well as the specific criteria
established for that facility. R. 305. The administrative
regulation describes the process for selection by BEP:
(a) After the due date for responses, the Division shall
submit to the Committee Chair the name of the applicant
recommended for the assignment.
(b) If the recommended applicant is not the most senior
applicant, the Division shall also submit to the Committee
Chair a report identifying any applicants with more seniority
and the reasons for finding the applicants unqualified.
(c) The Division shall also notify the applicant who is found
unqualified of the reasons for the finding and the
applicant's right to appear before the Committee to
present information supporting qualifications for the
13 A. 11.04.06(E)(2).
more senior applicant who was deemed unqualified wishes to
show that he or she is actually qualified, a meeting is
scheduled with the Committee. The Committee must agree or
disagree with BEP's recommendations within seven calendar
days after receipt of the recommendation, unless the time is
extended by mutual agreement. COMAR § 13 A.
11.04.06(E)(4). If the Committee does not respond within this
period, BEP's recommendation is effective. Id.
If the Committee disagrees with BEP's recommendation, BEP
and the Committee hold a conference to resolve the
disagreement. Id. If BEP and the Committee do not
resolve the disagreement, BEP's recommendation will be
effective. Id. Any dissatisfied applicant may then
appeal BEP's decision by requesting an administrative
review under COMAR 13A.11.04.13.
a convenience store, known as a dry stand,  at the National
Institutes of Health ("NIH") in Bethesda, Maryland.
On or about February 14, 2013,  BEP issued a solicitation
for VF25 at NIH. R. 321. The solicitation for bids, under the
heading "Specific Criteria," states "Must have
a current Food Service Sanitation Certification." R.
322, see also R. 324 ("5. On-site manager must
be certified in safe food handling, Serv-Safe Certification
and employees are required to have food handler
certification.") The bidding for VF25 closed on March
7, 2013. R.321. Ms. Homan and eight other licensed vendors
submitted bids, and Ms. Homan was the third bidder in
seniority. R. 83 at ¶¶ 7, 22, R. 327. However, the
two bidders senior to her did not have Serv-Safe
certification as required. R. 340. Since Ms. Homan's bid
was the "next most senior applicant who qualifies,"
BEP recommended her for the assignment to VF25. COMAR §
13A.11.04.06 (D)(3). BEP notified the two unqualified senior
applicants (Mr. Borja and Mr. Reyazzudin) that they were not
Borja and Reyazzudin requested a meeting with the Committee
because they were senior bidders for VF25 who were passed
over for failure to meet the specific criteria. R. 340. A
meeting was held, and it appears that the losing bidders did
not present evidence of being qualified, but instead argued
that the qualification of a Serv-Safe certificate should not
be required for bidding on VF25, because such certification
had not historically been required and because the Committee
had not been involved in the decision to add it as a specific
criterion for VF25. Opening Br. 5-6, ECF No. 30; R. 158-59.
The Committee made a decision to recommend to BEP that it
withdraw and revise the language of the solicitation and
rebid VF25. R. 297-299. The Committee recommended that the
wording be modified to allow all interested vendors to become
Serv-Safe certified prior to the assignment of the facility
rather than requiring the certification as part of the
eligibility to bid. Id.
notice of rebidding stated:
This Bid is being re-submitted because of recent
recommendations by NIH stating that facilities making coffee
are classified as food service facilities and now are
requiring all vendors and the on-site managers to have Food
Service Sanitation Certifications. In the original submission
of this bid, the Program errored [sic] by not allowing
sufficient time for the vendor to become certified prior to
signing the Operating Agreement. With the active
participation of the Committee of Blind Vendors and upon
their recommendation, the bid is being resubmitted with the
The vendor must have a valid Food Service Sanitation
Certification (Serv-Safe) at the time of signing the
Operating Agreement, or will forfeit the facility to the next
qualified vendor. The Serv-Safe certification will be valid
with the MBEPB for three (3) years from the date of the
The revised announcement incorporated the Committee's
recommended language. R. 343-46. There were four bids
submitted, not including Ms. Homan. R, 349. Mr. Borja was
then selected as the ...