by Charles S.P. Hodge
On Wednesday, April 18, the United States Court of Appeals for the Fourth Circuit at Richmond, Virginia, issued its opinion in the case of National Industries for the Severely Disabled (NISH) et al v. Cohen et al.
As described more fully in several earlier articles in “The Braille Forum,” NISH and other co-plaintiffs had brought this action in the United States District Court for the Eastern District of Virginia challenging whether the priority in favor of licensed blind vendors to operate vending facilities on federal property under the Randolph-Sheppard Act should properly be applicable to awarding mess hall food service contracts at federal military installations. The trial court on cross motions for summary judgment had previously awarded judgment to the federal defendants (the Secretary of Defense and the Secretary of the Army) and to the intervening party defendants including ACB, RSVA and NELDS, thereby upholding as proper the applicability of the Randolph-Sheppard Act priority to the award of a food service contract for mess hall services at Fort Lee, Virginia. The losing plaintiffs had then appealed the case to the United States Court of Appeals for the Fourth Circuit.
Circuit Judge King delivered the opinion of the Court of Appeals for a unanimous three-judge panel with Circuit Judge Traxler and Chief District Judge Boyle of the United States District Court for the Eastern District of North Carolina concurring in silence.
The Court of Appeals set forth each of the appellants’ arguments and rejected them all in turn. Contrary to the contentions of the appellants, the court found that the 1974 amendments to the Randolph-Sheppard Act specifically amended the definition of vending facility under that law to include cafeterias. The court also held that mess halls on military installations clearly fall within the definition of a cafeteria under the Department of Education’s and the Department of the Army’s implementing regulations under the Randolph-Sheppard Act.
The court then turned its attention to the appellants’ most important and crucial contention that the Randolph-Sheppard Act is not a procurement statute and thus cannot be properly applied to awarding mess hall contracts on military installations under the Competition in Contracting Act. Contrary to the appellants’ arguments, the court held that the Randolph-Sheppard Act does fall within the savings clause exception under the Competition in Contracting Act as a federal law otherwise authorizing contract awards, and to that extent, that the Randolph-Sheppard Act qualifies as a procurement statute which can properly be applied to contract awards.
Finally, and most telling, the court held in explicit terms that in order to be upheld against the challenge mounted by the appellants, the contracting officer’s interpretation of the relevant laws, regulations and interpretive precedents must only be a permissible reading of those governing authorities. The court, however, went further by stating explicitly that not only was the contracting officer’s interpretation of the controlling legal authorities permissible, but in fact, it was and is the correct interpretation of the law.
Thus, ACB, RSVA and NELDS can be appropriately proud of their role as intervening parties in holding the federal defendants’ feet to the fire in this case and in winning a smashing legal victory and an expansive interpretation of the proper application of the Randolph-Sheppard Act and its priority in favor of licensed blind vendors. Time, energy and — most important — money were well invested by the defendant intervenors, when one realizes and celebrates the return achieved, a smashing litigation victory at the appellate court level in this very important case under the Randolph-Sheppard Act. ACB, RSVA and NELDS can rightfully and justifiably take great pride in their legal advocacy efforts in this case.