by Charles S. P. Hodge
On Wednesday, April 26, Charlie Crawford sent out a celebratory message on the ACB Listserv. Under the subject heading, “Big win for RSVA, ACB and others," Crawford wrote: “I don’t have the details yet, but just heard that the judge in the NISH case has ruled in favor of our position that vendors do have the priority in mess hall operations on military bases. This is a major victory!”
In the paragraphs below, I will summarize the major issues which this case has dealt with and share the details of the judge’s opinion, which unequivocally upholds the priority for licensed blind vendors to operate cafeterias on military bases. Late in October 1999, National Industries for the Severely Disabled (NISH) and one of its associated non-profit agencies, Goodwill Industries of Richmond, Va., brought suit in the U.S. District Court for the Eastern District of Virginia against the Secretary of Defense and the Secretary of the Army. The thrust of the lawsuit was to enjoin the federal defendants from competing under open bidding conditions the renewal contract to operate the mess hall facility at Fort Lee, Va. The plaintiffs argued in their initial pleadings that the Randolph-Sheppard Act priority in favor of licensed blind vendors does not apply to such mess hall contracts, that the state licensing agencies under the Randolph-Sheppard Act are therefore not proper bidders for such contracts, and that the Fort Lee mess hall renewal contract should have been placed on the procurement list pursuant to the Javits-Wagner-O’Day (JWOD) Act for award to NISH and Goodwill Industries of Richmond under that act. On April 26, District Judge Gerald Bruce Lee of the U.S. District Court for the Eastern District of Virginia disagreed with the plaintiff’s contentions and upheld the Randolph-Sheppard priority in mess hall cafeterias.
When NISH brought suit late in 1999, the American Council of the Blind and its special-interest affiliate, the Randolph-Sheppard Vendors of America (RSVA), and the National Education and Legal Defense Service for the Blind and Visually Impaired (NELDS) filed motions to intervene as of right in the NISH lawsuit as parties defendant intervenors. Subsequent to the actions of ACB and its legal allies, four other entities also filed petitions with the court to intervene as parties defendant intervenors. In late January of this year, the district court granted the petitions for intervention of all seven parties defendant intervenors. This development was, in and of itself, a major victory for ACB and its allies.
On Friday, March 17, the court heard oral arguments of counsel for all parties in the lawsuit regarding the cross motions for summary judgment, which had by that time been filed by all parties.
On Tuesday, April 25, Judge Lee issued his opinion in NISH et al v. Cohen et al. The court spent the first half of its opinion discussing in fairly complex detail the standard of review which a federal trial court should apply to a situation such as the one in the instant case where the court is confronted by cross motions for summary judgment. The court then laid out in some detail the various provisions of federal law and regulations which the parties had cited to him as being precedent setting or controlling as to the legal questions before the court.
While admitting that the judicial precedents were sparse on the issue before the court, Judge Lee, nevertheless, finds that the plain language of the 1974 amendments to the Randolph-Sheppard Act expanded the scope of that act’s priority in favor of licensed blind vendors to apply the priority to cafeterias operated on federal property. The court then reads the implementing regulations, which were promulgated by the Rehabilitation Services Administration (RSA) of the U.S. Department of Education, and which specifically state the definition of covered cafeterias as including and encompassing mess halls on military installations.
The court points out that, while Congress had provided some special provisions with respect to the sharing of vending machine income in the 1974 amendments, no such limiting language had been included in the section regarding cafeterias. Thus, the court believes that the plain language of the act and the implementing regulations should be given their clear and usual meaning — i.e., that the Randolph-Sheppard vendors clearly have the mandated priority with respect to mess hall cafeterias.
The court then turns to answer certain statutory arguments raised by plaintiffs. NISH and Goodwill Industries of Richmond had argued that the Competition in Contracting Act of 1994 provides that only laws which specifically exempt themselves from the provisions of that law should be deemed to be exceptions from the provisions of that law, and, since the Randolph-Sheppard Act does not specifically state that it is an exception to the Competition in Contracting Act, that act should take precedence over the Randolph-Sheppard Act. In response, the court points out that the 1974 amendments to the Randolph-Sheppard Act were enacted 20 years before the Competition in Contracting Act, and that therefore the Randolph-Sheppard Act could not possibly have specifically exempted itself from this particular law, passed 20 years later. Second, and most crucially, the court points out that the savings clause of the Competition in Contracting Act itself states that other provisions authorized by law may be a valid exception to that act. The court then rules that the 1974 amendments to the Randolph-Sheppard Act constitute another provision, so authorized by the law, which is exempted from the Competition in Contracting Act.
Similarly, the court answers the argument that since the Randolph-Sheppard Act is not specifically mentioned in the Federal Acquisition Regulations (FAR), then the Randolph-Sheppard Act should not be applied to such procurement activity as the mess hall renewal contract at Fort Lee. Once again, the court refers to the savings clause within the FAR which speaks in terms of other provisions of law, and the court holds that the Randolph-Sheppard Act falls within this savings clause and that the Randolph-Sheppard priority, therefore, may be applied to mess hall contracts such as that at Fort Lee.
In this somewhat complex and technical opinion, Judge Lee has painstakingly analyzed and applied the relevant statutes and regulations, and in his decision, he has granted to licensed blind vendors and their state licensing agencies a major legal victory. ACB, RSVA and NELDS are to be commended for their prompt and fearless action in jumping to the defense of the Randolph-Sheppard Act and its priority in the context of mess hall contracts on military bases.
At the writing of this article, we expect that the losing plaintiffs may well appeal the ruling to the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va. But, for now, we should all herald and celebrate this outstanding litigation victory.