Randolph-Sheppard Act Regulations Mandate Binding Arbitration, Not GAO Review, for Protests of Covered Procurements; GAO B-416182.2, Georgia Business Enterprise Program-Vocational Rehabilitation Agency

Protest challenging the agency’s exclusion of a proposal from the competitive range is dismissed for lack of jurisdiction, where GAO will not consider a protest by a state licensing agency challenging a procurement issued pursuant to the Randolph-Sheppard Act, because such complaints are resolved through mandatory binding arbitration procedures issued by the Department of Education.

The Georgia Business Enterprise Program-Vocational Rehabilitation Agency protested the Army’s decision to eliminate its proposal from consideration for award of a contract for full food service at various dining facilities located on Fort Benning, Georgia.

The procurement was conducted pursuant to the Randolph-Sheppard Act, which establishes a priority for blind persons represented by state licensing agencies in the award of certain contracts, including those for the operation of cafeterias in federal buildings. Under the RSA’s implementing regulations, if a designated SLA submits an offer found to be within the competitive range for the acquisition, the agency will enter into negotiations solely with the SLA, in an effort to obtain the services at a reasonable cost.

GVRA submitted a proposal, but the agency later notified the protester that its proposal had been excluded from the competitive range because it was not one of the most highly rated proposals and did not have a realistic chance for award. This protest followed.

However, GAO declined to consider the protest merits, finding that it lacked jurisdiction. GAO explained that the regulations implementing the RSA’s requirements include procedures for resolving dispute through binding arbitration. According to GAO, where Congress has vested oversight and final decision-making authority in a particular federal official or entity, it will not consider protests involving issues subject to review by that official or entity.

The protester argued that it challenged the merits of the evaluation, not the agency’s compliance with the RSA, and therefore GAO should find it has jurisdiction. However, GAO found that the resolution of the SLA’s protest of its exclusion from the competitive range has specific consequences set forth in the RSA’s implementing regulations, which provide that if its proposal was included in the competitive range, the agency would enter into negotiations solely with the SLA, in an effort to obtain the services at a reasonable cost. Through its allegation that the Army’s allegedly improper elimination of the SLA’s proposal from the competitive range, GAO found that GVRA’s protest implicates a potential violation of the RSA, which, as stated above, provides for binding arbitration.

Georgia Business Enterprise Program-Vocational Rehabilitation Agency is represented by Aron C. Beezley, Patrick R. Quigley, William R. Purdy, Sarah S. Osborne, and Anna M. Lashley of Bradley Arant Boult Cummings LLP. The government is represented by Scott N. Flesch, Major Felix Mason, and Andrew J. Smith, Department of the Army. GAO attorneys Katherine I. Riback and Amy B. Pereira participated in the preparation of the decision.

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