The applicability of the Randolph-Sheppard Act to military mess halls

Army Lawyer, April, 2004 by Erik L. Christiansen

I can see clearly now the [competition's] gone. I can see all obstacles in my way. (1)

Introduction

The Randolph-Sheppard Act for the Blind (RSA), (2) enacted in 1936, provides blind vendors with a preference for certain federal contracts. Since 1936, Congress has amended the Act several times to strengthen consideration for blind vendors, most importantly in 1974. (3) Recent decisions at the federal district and appellate levels interpreting the RSA in light of the 1974 amendments have further expanded the Act's reach. (4) One such expansion, the application of the Act to military mess hall contracts, has sparked significant controversy, in part, because the blind vendor preference directly conflicts with other procurement preference programs. (5)

This article surveys the current controversy over military mess halls under the RSA. It begins with a brief history of the Act, to include the 1974 amendments that expanded the RSA to include "cafeterias" on "federal property." (6) Next, the article addresses three areas of litigation concerning military mess hall contracts arising from the 1974 amendments. The first area involves whether the RSA applies to military mess halls at all. It discusses agency interpretations and implementation of the 1974 RSA amendments, which read "mess halls" into the RSA's definition of "cafeteria," and the resultant federal cases, NISH v. Cohen (7) and NISH v. Rumsfeld. (8) The second area of litigation concerns the relationship of the blind vendor priority to other procurement preference programs, including the Javits Wagner O'Day Act, (9) the Historically Underutilized Business Zone (HUBZone) Act, (10) and small business set-asides, as exemplified by In re Intermark (11) and Automated Communications Systems, Inc. v. United States. (12) The third area of litigation explores the scope of the blind vendor preference. It discusses aspects of competitive range determination, as in Oklahoma v. Oklahoma Department of Rehabilitative Services, (13) and the discretion accorded a contracting officer's determination of the applicability of the RSA, analyzed in Washington State Department of Services for the Blind (WSDSB) v. United States. (14) The article concludes with a cursory discussion of future mess hall litigation in light of these federal opinions and the National Defense Authorization Act for Fiscal Year 2004. (15)

Congress enacted the RSA in 1936 to "provid[e] blind persons with remunerative employment, enlarg[e] the economic opportunities of the blind, and stimulat[e] the blind to greater efforts in striving to make themselves self-supporting." (16) To that end, the Act authorized blind vendors to operate vending stands in federal buildings. (17) Due in part to the authority the Act bestowed on agency officials to approve blind vendors' operations, (18) the 1936 Act met with limited success.

Spurred by the "invention of vending machines," Congress reexamined the RSA in 1954. (19) Although the amendments "showed concern for expanding the opportunities of the blind," (20) such as applying the RSA to federal properties (previously buildings), the Act maintained discretion with agency officials to implement the Act's provisions "so far as feasible." (21) Consequently, "[in] reality [the 1954 amendments] fell far short of [c]ongressional intent to expand the blind vendor program." (22)

In 1974, Congress again addressed the lack of impetus for the program, (23) responding with amendments that (1) secured the priority of blind vendors on federal properties; and (2) expanded the scope of blind vendor opportunities. (24) The 1974 amendments established a federal-state relationship that effectively replaced the previous "so far as feasible" preference. (25) The amendments mandated the Department of Education (DOE), through the Commissioner of Rehabilitative Services Administration (CRSA), to publish regulations ensuring the priority of blind vendors in the "operation of vending facilities on [f]ederal property." (26) The amendments require State Licensing Agencies (SLAs), through their respective chief executives, to "give preference to blind persons who are in need of employment" (27) and to "cooperate with the [CRSA] in carrying out the purpose of the [RSA]." (28)

In addition to strengthening the blind vendor preference, the 1974 amendments expanded the scope of the RSA to include management functions previously considered beyond blind vendor capabilities. (29) This extension included the addition of the operation of cafeterias to the RSA's list of covered "vending facilities." (30) Unfortunately, the 1974 RSA amendments did not define cafeteria, providing an ambiguity as to whether Congress intended military mess halls to fall within the RSA's ambit.

Military Mess Hall Contract Litigation Stemming from the 1974 RSA Amendments

The 1974 amendment's undefined term "cafeteria" and concomitant strengthening of priority for blind vendors has resulted in litigation of military mess hall contracts on several fronts: (1) whether the RSA applies to military mess halls at all; (31) (2) the interrelationship of the RSA preference to other set-aside programs; (32) and (3) the discretion of an agency when administering the RSA preference. (33) The following sections address these areas of litigation.