by Charles S.P. Hodge
History
Early in the fall of 1999, the commanding officer at Fort Lee, Va., announced his intention to compete the renewal of his troop feeding contract under open competition procurement rules. Under these open competition bidding rules, the Virginia Department for the Visually Handicapped (VDVH), which is the recognized Virginia state licensing agency under the Randolph-Sheppard Act, could submit a proposal, and if VDVH’s proposal were to fall within the competitive range, the troop feeding contract could be expected to be awarded to the VDVH Randolph-Sheppard business enterprise program. Even though VDVH’s bid might not necessarily be the lowest bid, VDVH could be expected, because of the Randolph-Sheppard priority, to be awarded the troop-feeding contract.
In order to stop the intended issuance of a request for proposals for the Fort Lee troop feeding renewal contract under these open bidding conditions, on October 29, 1999, the National Industries for the Severely Disabled (NISH) and its associated non-profit agency, Goodwill Industries of Richmond, Va., filed a lawsuit in the Alexandria division of the United States District Court for the Eastern District of Virginia seeking to enjoin open bidding for the Fort Lee troop feeding renewal contract.
The NISH Complaint
The court complaint contends that the Randolph-Sheppard Act and its priority in favor of licensed blind vendors is not recognized in the Federal Acquisition Regulations (FAR), and that therefore the state licensing agency should never be an appropriate bidder for a military troop feeding contract. The court complaint also asserts that the troop feeding renewal contract at Fort Lee, Va., should not be competed for under open bidding conditions, but rather should properly have been set aside under the provisions of the Javits-Wagner-O’Day Act for assignment by NISH to Goodwill Industries of Richmond, Va. The court complaint named the Secretary of Defense and the Secretary of the Army as co-defendants.
While the General Counsel of the Defense Department had already issued a legal memorandum stating that the Randolph-Sheppard Act and its priority did apply to troop feeding contracts such as that up for renewal at Fort Lee, Va., there were officials within the Army who had disputed this finding, and had taken a position — similar to that set forth in the NISH court complaint — that the Randolph-Sheppard state licensing agencies should not be permitted to compete for troop feeding contracts.
ACB and Others Intervene
If the NISH complaint were to be sustained in the pending litigation, or even agreed to by the federal defendants as part of a settlement in the case, then the decision would gravely undermine the Randolph-Sheppard Act priority. The Business Enterprise Programs in several states might then be deprived of their very lucrative troop feeding locations. Confronted with these distressing prospects, on December 16, 1999, the American Council of the Blind, the Randolph-Sheppard Vendors of America (RSVA), and the National Educational and Legal Defense Service for the Blind and Visually Impaired (NELDS) made formal written application to the United States District Court for the Eastern District of Virginia to intervene in the NISH lawsuit as parties-intervenor-as-of-right, in order to contest the allegations made by NISH and to staunchly protect the vitality of the Randolph-Sheppard Act and its priority favoring licensed blind vendors.
Initially, the court set a hearing date of December 30 to evaluate the application to intervene. However, NISH submitted a written opposition to the application for intervention-as-of-right, and ACB and its partners submitted a written reply supporting their application to intervene. The District Court then cancelled the December 30 hearing indicating that it would decide the matter of the requested intervention-as-of-right based upon their review of the written submissions of counsel.
Other Consumer Groups Become Involved
On December 30, 1999, the National Federation of the Blind and the Vending Facilities Vendors Council (VFVC), the elected committee of blind vendors in Virginia, also filed applications to intervene in the NISH lawsuit. I anticipate that NISH will also oppose this latest application to intervene, and that the court will decide this later intervention application on the basis of written submissions of counsel. Meanwhile, the initial federal defendants have not yet filed their responsive pleading in the case.
It is very surprising that the VDVH and other Randolph-Sheppard state licensing agencies along with the National Council of State Agencies for the Blind (NCSAB) have thus far decided to sit on the sidelines and let the consumer groups of the blind fight their legal battle for them. They are more conspicuous by their absence among the parties attempting to intervene in the NISH case.
The U.S. District Court for the Eastern District of Virginia has local procedural rules containing very demanding time deadlines, which the local bar refers to as “the rocket docket.” The NISH lawsuit and the pending applications for intervention have been assigned to district judge Gerald Bruce Lee. ACB’s legal team anticipates that Judge Lee will make a decision on the intervention applications by the end of January 2000. Hopefully, ACB and its partners will be permitted to participate in the NISH lawsuit as full parties defendant. ACB will keep its members and friends informed of developments in the NISH lawsuit as they occur.