The Blitz, Spring 2022 Edition
The Blitz, Spring 2022 Edition
Well, Spring has sprung and it’s time to catch everyone up on all things Randolph-Sheppard. Much has happened since our last issue. The plan was to get The Blitz out more frequently, but sometimes life has other ideas. But here we are so let’s get started.
Getting a Charge Out of Electric Vehicles - This topic has been all the rage since the news broke that electric vehicle charging stations could possibly be placed at interstate rest areas. The $64,000 question, so to speak, is whether or not an EV charging station is a vending machine? NABM President Nicky Gacos and Terry Smith have had multiple meetings with the U.S. Department of Transportation to discuss this issue. Current law forbids commercial activity at the interstate rest areas; however, vending machines are permitted provided priority is given to the blind. If a determination was made that an EV charging station is a vending machine, that would open the door to placing them at interstate rest areas, provided the State Licensing Agencies are given priority. That is an oversimplification of the issue. It is obviously more complex than that. Clearly, an EV charging station meets the definition of a vending machine found at 34 CFR 395.1(y). DOT has asked RSA to confirm that interpretation. And that’s where the process comes to a screeching halt. RSA has all but refused to state the obvious, which leaves DOT in a quandary. Creating a national network of EV charging stations is a priority of the Biden Administration. Congress has appropriated $7 billion to be awarded to the states to help create this network. Auto manufacturers are leveraging their futures on shifting to the production of electric vehicles. It makes perfect sense to place some of these charging stations at the rest areas. However, unless DOT makes the determination on its own that an EV charging station is a vending machine, it is looking less and less likely that any will be placed at the rest areas in the foreseeable future. As far as blind vendors go, this may or may not be a big deal. Many questions remain on a workable model for Randolph-Sheppard and how much money could be generated from these charging stations. At this point, based on the cost of installation, no SLA would be able to install charging stations. This means the SLA would have to partner with a third-party vendor and it remains unclear as to how much profit would be available to split with a blind vendor. The other part of this is that, not moving forward with charging stations at the rest areas, will ease the stress level of those who believe doing so will lead to full-scale commercialization of the rest areas. But you can bet NABM will continue to be involved with this issue and will keep our readers updated on any developments.
What Would You Do With Half a Million Dollars? - NABM has an idea on what not to do with $500,000. It seems the Biden Administration thinks a Randolph-Sheppard Technical Assistance Center is just what Randolph-Sheppard needs. NABM says NO and we sense little support for a TA Center from our state agency friends either. The number of vendors in this country has been on a steady decline for 3 decades and that process was accelerated by the recent pandemic. These numbers are not going down because state agencies are not receiving technical assistance. The numbers are declining because we continue to operate the program under a 1936 model. A TA center will not fix what is wrong. We need major change. In support of NABM’s position, National Federation of the Blind President Mark Riccobono has written to Congress asking members to instead redirect that money to award a grant to conduct a thorough study to determine actions that are necessary to salvage the program. The study should involve stakeholders and should identify reasons the program is declining, barriers to turning it around, and recommendations for legislative or regulatory changes. Perhaps, a TA Center would be one of the recommendations and NABM could support that as part of a larger comprehensive plan to reinvent Randolph-Sheppard. Bold action is needed to move this program into the future and we will continue to advocate for such bold action.
But We Could Use Some Federal Dollars - At the end of last fiscal year, NABM asked the U.S. Department of Education to use a small portion of the $170,000,000 states turned back in unused VR funds to award innovation grants to SLAs to modernize their programs and create new opportunities for blind vendors. The request fell on deaf ears. We will renew that request this year and urge the state agencies to support that request. The lack of resources has always been cited as a reason for no growth. Let’s see how creative SLAs can be. Would we see an influx of micro markets? What about food trucks? Franchises? Would an SLA open up sites in the private sector? Would they venture outside of food service? What about a laundromat? Let’s find out
To Regulate or Not To Regulate: That Is the Question - The current Randolph Sheppard regulations that can be found at 34 CFR 395 were promulgated in 1976. That is almost a half century ago and they have not been touched since. The world of today is vastly different than the world of 1976 and this is especially true for the vending and convenience service industry. As our program continues to erode, it may be time to modernize these regulations. There are so many areas where the regulations could be improved and/or clarified. We mentioned earlier the controversy over DFA contracts. The question of whether or not an EV charging station is a vending machine is another. These are just 2 examples that could be clarified in the regulations. There are many, many more, in fact, in 2016, NABM provided comments to RSA on many of these needed changes. There were literally pages of them. NABM is urging the Department of Education to work with the blindness community to identify areas where clarification is warranted and to explore the possibility of updating the regulations. It is difficult to urge states to modernize their programs when our federal partner refuses to modernize.
Troop Dining: It’s Always Something - Here’s what’s been happening with the never ending Randolph-Sheppard / DOD saga.
GAO Drops Bomb on Our Priority - What started out as nothing more than a nuisance has turned into a major headache for Randolph Sheppard. The Navy had issued a solicitation for Dining Facility Attendant (DFA) services at its Ventura County facility in California and included the Randolph Sheppard priority. DFA contracts are those that do not require the contractor to cook the food but they do provide all other service related to the operation of the cafeteria. Multiple arbitration panels and courts have ruled that the priority applies to these types of operations. However, when the Navy included the priority in this particular solicitation, the HubZone company that was the incumbent filed a protest with the GAO. This was more of an aggravation than anything and was thought to simply delay the inevitable which would be the state licensing agency being awarded the contract. However, much to the surprise of everyone, probably including the incumbent who protested, the GAO essentially said the previous arbitration panels and federal judges had gotten it wrong and the priority does not apply to DFA contracts. On the surface, it would appear that a ruling would have very little impact, since in reality, it is nothing more than a recommendation and the Navy was not bound to adopt it. Furthermore, such recommendations do not set any sort of legal precedence, nonetheless, the Navy has apparently elected to abide by the GAO‘s finding which could put several other DFA contracts at risk when it is time to resolicit. The Army has already jumped on board and is using the GAO recommendation in other cases. There is plenty of blame to go around on how this was allowed to happen, but there’s no need to play the blame game at this point. The question is how do we fix it? The answer is RSA must take action to clarify that the priority does indeed apply to these sorts of contracts. It did so in a Congressional letter a few years back, but more formal action is needed in the way of regulations or a Notice of Interpretation published in the Federal Register. The regulatory issue will be discussed below, but whichever option RSA chooses, it must act to protect the priority and preserve this program for blind entrepreneurs.
What the Heck Happened at Lee? - The tale at Fort Lee is a curious one. The Army issued the contract solicitation with a Randolph Sheppard priority as required. The SLA was notified that it was in the competitive range. During further discussions, the Army allegedly felt that the SLA’s prices were low in a couple of areas and suggested they be increased. Eventually, the contracting officer asked the SLA how quickly they could be in once notified of an award. The response was 21 days. The next correspondence was the notice that the SLA had not been awarded the contract and it was awarded instead to someone with a lower price. What the heck? How could that possibly happen? Since the SLA was not the incumbent, it’s only real recourse is arbitration.
The Bay State Opens First Troop Dining Operation - Congratulations to the Massachusetts SLA for pursuing and getting its first military dining contract. NABM facilitated the process and worked very closely with the SLA who had never pursued a military contract. Eventually, the SLA was awarded the contract at Fort Devens. Adele LeFleur and her teaming partner, Blackstone Consulting, opened for business just a few weeks ago and the initial returns are positive. Way to go guys!
Utah Prevails at Hill AFB - In what may have been one of the most ridiculous arbitration cases ever involving a troop-dining contract, the Utah SLA prevailed in its arbitration with Hill Air Force Base. The Air Force had issued a solicitation with the Randolph Sheppard priority as required. However, the Air Force’s position in that case was that the contract was set aside for award to a small business and the priority only allowed the Utah agency to submit a proposal and be judged against other proposals. In order to get the contract, where they ironically were the incumbent with their teaming partner FSIG, they had to be the low bid. The SLA’s bid was very competitive, but not the absolute lowest so the SLA did not get the contract. The arbitration panel ruled the Air Force violated the Randolph-Sheppard Act and rightfully so.
Schriever Arbitration Goes Well - The most recent arbitration involves Schriever Air Force Base in Colorado and this one rivals Hill AFB, when it comes to strange interpretations of the law. In this case, the SLA and their bind vendor Jack Riley and his teaming partner FSIG were the incumbent. However, it was not awarded the contract. The Air Force took the unusual position that the law allows the contracting officer to set the competitive range. If the SLA’s bid is within that competitive range, the contract is awarded to the SLA. The contracting officer in this case established a competitive range of 1 meaning low bid. It is a convoluted interpretation of the law. From what we are hearing, the arbitration case went well and we are optimistic about the decision.
Marine Arbitration Concludes: Now We Wait - This case has been outstanding for a while now. You may recall that the South Carolina SLA submitted a bid for the East Coast U.S. Marine contract which included facilities in South Carolina, Georgia, North Carolina, Virginia, and DC. The proposal was submitted in cooperation with the other states with FSIG as its teaming partner. The solicitation did include the required Randolph Sheppard priority, but the SLA’s proposal was judged not to be in the competitive range. The SLA objected and filed for arbitration. The hearing was just recently held in DC and we are awaiting a decision. The interesting thing in this case is, from what we understand, the Marines put on no case. By that, we mean they called no witnesses to justify their determination. Considering the panel heard only one side of the story, there is reason to be optimistic about the decision. There is some hope this case can be settled but in the meantime we await the arbitration ruling.
Schofield Barracks (Hawaii) – We reported on this case in the last issue. It revolves around that whole issue of whether or not the priority applies to DFA contracts and the case is now in the federal courts. NABM filed an amicus brief in this case like it has in many other cases. It solicited the National Council of State Agencies for the Blind to join in on the brief which NCSAB did. This may be the first look at the impact of the GAO ruling cited above. We are awaiting a ruling
West Virginia Pursues First Troop Dining Contract – West Virginia is pursuing its first troop-dining contract at Camp Dawson. Bill Ramsey is the blind vendor and Blackstone Consulting is his teaming partner. NABM has been facilitating this process and encouraging the SLA. It is an active solicitation so it will be a while before we know anything, but we have our fingers crossed.
Fort Leavenworth Creates Dilemma - The situation with the Fort Leavenworth bid is very interesting. The solicitation came out with a Randolph Sheppard priority as required and as an 8(a) small business set aside. This means if the Randolph Sheppard proposal is not within the competitive range and the contract will not be awarded to the SLA, then the contract will be awarded to a certified 8(a) small business. That is very common. What makes this case unique is that several blind vendors have gone through the process with the Small Business Administration to be certified as 8(a) companies and at least 2 submitted bids in competition with the SLA. Therein lies the dilemma. It has sparked debate as to whether or not blind vendors should be competing with other blind vendors. Is this another nail in Randolph-Sheppard’s coffin or a precursor of the Randolph-Sheppard of the future? Where do you fall on that debate? Let us hear from you.
Vistar Advisory Board Discussed Today’s Realities – NABM President Nicky Gacos recently attended the Vistar Advisory Board Meeting in Cleveland. The good news is exciting changes are coming with the Vistar website and ordering process. Much of the meeting, though, was devoted to the realities of today’s food service industry which included price increases, labor shortages, and supply chain issues. The increased importance of micro markets and the evolution of the micro cafes were also discussed. Nicky said the discussion only reinforced the need for SLAs to modernize and get behind the micro café concept.
AbilityOne: Let’s Chat - Several years ago, NABM reached out to the AbilityOne Commission to start the conversation about how Randolph-Sheppard and AbilityOne could coexist in the military dining arena. For decades, the two programs had fought over the DFA contracts referenced earlier. Those conversations were the start of what we could refer to as detente and eventually led to a memorandum of understanding between AbilityOne and RSA. That MOU was just recently updated. We engaged in meaningful dialogue on how blind vendors could possibly benefit from the AbilityOne program. Those conversations got sidetracked for reasons out of everyone’s control. However, those conversations are scheduled to return later this month. There has been tremendous change with the AbilityOne Commission and the timing might be right to explore further collaboration. Stay tuned! We will keep you posted.
We R Randolph-Sheppard - Have you tuned into Nicky and Terry’s We R Randolph-Sheppard Podcast? You need to check it out wherever you get your podcasts or click here https://we-r-randolph-sheppard-podcast.simplecast.com/episodes/2022nama. There are 4 episodes so far. You are guaranteed to learn something and hopefully enjoy listening to and getting to know the guys better.
Ain’t No Money In It for the Blind Guys - Are you a blind vendor who has been aggrieved by an SLA? Do you want to file a grievance and possibly go to arbitration? Do you want to seek damages to make you whole? Well, sorry to say, you can forget about it. In recent years, the federal courts have a ruled more and more that states are protected by sovereign immunity and cannot be sued for damages by blind vendors. The last great hold out was the West Coast where the federal courts had allowed damages. That is until the Jerry Bird case in Oregon. Without going into details about the case, the Ninth Circuit of the U.S. Court of Appeals ruled the State did not have to pay Mr. Bird damages by virtue of its protection under the sovereign immunity provision of the U.S. Constitution. This basically ends any hope of getting retroactive damages. Arbitration panels will only be allowed award prospective relief. So why not just bypass the grievance process altogether and sue the individuals who made the decision? Well, you may be able to do this in some very, very limited cases where your constitutional rights were somehow violated, but those kinds of cases are very rare. For now, we are stuck with the system we have which means no damages unless the SLA agrees to do so voluntarily.
Mississippi Pilots Unique Mentoring Program - Dorothy Young, the Director of the Mississippi Office for Vocational Rehabilitation of the Blind, had an idea. She wanted to create a mentoring program for her vendors with less than 5 years of experience. She approached Terry Smith and Nicky Gacos and what is presumed to be the first Randolph-Sheppard mentoring program ever was soon born. The program is in midstream as we go to press so we will be giving a more detailed report in our next issue. At this point, we will tell you the program consists of 12 1-hour seminars plus each participant is assigned a mentor. The mentors are blind entrepreneurs from other states.
NAMA Offers New Ideas for the Future - The National Automated Merchandising Association held its annual show in Chicago in April and it was quite an event. Much of the focus at this year’s show was on the future and technology. Vendors and SLA staff alike should try to attend this event whenever possible; however, if you missed this year‘s show, we encourage you to tune in to Episode #4 of the We R Randolph-Sheppard Podcast. You will hear about many of the innovations at the show and hear interviews from the floor of the show.
Texas Vendor Hopes To Be Both Plaintiff and Juror in Same Case - All of us have become all too familiar with the Randolph-Sheppard arbitration process. The blind vendor selects an arbitration panel member as does the SLA and then those two panel members select an independent chair. John Mahler, a Texas blind vendor, is taking a unique approach to his arbitration. He has named himself to serve on the arbitration panel meaning he will be both the plaintiff and a juror in the case. To our knowledge, a blind vendor has never served on their own arbitration panel. But if you stop and think about it, federal agencies do it all the time. There are many examples of DOD officials serving on arbitration panels involving DOD. There are examples of GSA officials serving on arbitrations involving GSA. What is the difference? There really isn’t any? Will this start a trend? Maybe but probably not. Either way, we will be watching this case with great interest.
Positive Change in West Virginia - Some very positive things are happening in West Virginia. We mentioned earlier that the West Virginia SLA is pursuing its first military dining contract. Last year it went after and was awarded the large cafeteria at the FBI Complex there. Now, progress is being made at the interstate rest areas. For many years, sighted third-party companies operated the vending at the interstate rest areas while most West Virginia vendors were earnings much less than the national average. The Committee of Blind Vendors, with an assist from the West Virginia Affiliate of the National Federation of the Blind, advocated to turn the more lucrative location at the rest areas over to the blind vendors. After some initial resistance from the SLA, they eventually agreed and are now going through the transition which is expected to be completed by September 30. NABM has facilitated the creation of a plan to do this and is excited about the progress. There are questions as to whether or not an SLA can legally use third parties at interstate rest areas and West Virginia was shaping up to be a test case. Fortunately, all parties agreed that the intent of the program is to benefit the blind by providing employment opportunities.
See You in the Big Easy – The National Federation f the Blind is holding its National Convention July 6-10 in New Orleans. Everyone is excited to be having an in-person convention after being forced to have them virtually the last 2 years. Register to attend at www.neb.org. NABM will be meeting on the afternoon of July 7th and President Nicky Gacos has an impressive agenda already in the works. You will want to be there if possible.
Remember Ms. Jones? - Deanna Jones is well known to most of our readers. She is a former blind vendor who went to law school and eventually worked as a Randolph Sheppard Program Specialist at RSA. After leaving RSA, she returned to her home in Vermont where she worked for the State. She has now retired but maintains her interest in Randolph-Sheppard. She would love nothing more than to serve on some arbitration panels. If anyone is in need of a panel member and has any interest in talking with Deanna, contact Nicky Gacos or Terry Smith and they can get you in contact with her.
Two Legends Retire - Within the last few weeks we have seen two legends in our field retire and they will be sorely missed.
Ray Hopkins - When people talk about Ray, they usually refer to him as a gentleman. He was the former Director of the Oklahoma agency before going to DC to work for RSA as a Randolph Sheppard Program Specialist. He left that job to become the Director of the Virginia Department for the Blind and Visually Impaired. He is a former President of the National Council of State Agencies for the Blind and at one point served as Chair of NCSAB’s Randolph-Sheppard committee. He has been very much engaged as an advocate for the program and as a defender of the priority. Best wishes Ray.
Peter Nolan - When you talk about Randolph-Sheppard attorneys, Peter Nolan‘s name is one of the first that comes to mind. Peter resides in Austin Texas and has had his hand in many Randolph-Sheppard cases. He has represented multiple states in both arbitration and federal court cases involving military dining issues and has won several crucial cases in support of the priority. He has also done work for NABM in the past. Thank you Peter and here’s to a long and healthy retirement.
We Say Goodbye: The Randolph-Sheppard family recently said goodbye to 3 state BEP directors. Kathy Roat in Iowa was the first to check out and Tanicca Binder of Oklahoma followed suit. Most recently, Troy Larson of Colorado announced his upcoming departure. All 3 are pursuing opportunities outside of Randolph Sheppard. NABM thanks them for their service and wishes them the very best.
New Director in California- NABM would like to welcome aboard Kelly Snow as a new BEP Director in California. Kelly was on the BEP staff before being named the interim Director. The interim tag has now been removed from his title and he is the full-time BEP Director. Welcome aboard Kelly.
New Committee Chairs - Several states have new Elected Committee Chairs. Let’s welcome them aboard. They are:
California- Max Duarte
Georgia – Alicia Morris
Texas - Zach Davis
If we missed someone, please contact Terry Smith so he can update the list.
A Sad Farewell. NABM was saddened to hear about the passing of former blind entrepreneur Ray Washburn from Oklahoma. Ray was on-site at his vending facility in the Murrah Federal Building when the infamous Oklahoma City bombing took place. He was credited with helping rescue five individuals. Click on this link to learn more about Ray. Rest In Peace Sir. https://www.cnn.com/2022/01/19/us/oklahoma-city-raymond-washburn/index.html
NABM Taking Tennessee Training to the Next Level - NABM is contracting with the State of Tennessee to conduct its annual training conference. The training is scheduled for August 5-6 in Murfreesboro. TN, which is just outside of Nashville. NABM will tap into its many resources to bring a quality training experience to the Tennessee blind entrepreneurs and staff. Interested in upgrading your annual training conference? Maybe NABM can help.
Answering Your Questions, No Matter How Strange- if federal dollars are used to build or renovate a vending facility, does this trigger the Randolph-Sheppard priority? This may be the question we get more than any other and one of the easiest to answer. And that answer is No. The source of funding has no bearing on whether or not the priority applies. In order for the R-S priority to kick in, the property must be owned, leased, or otherwise controlled by a federal agency or instrumentality. You always hear about the strings that come with federal dollars. Unfortunately, our priority isn’t one of those strings.
Upcoming Events - Here’s a look at some upcoming events that may be of interest:
July 6-10 - NFB National Convention in New Orleans
July 18-19 - NAMA Fly-In in Washington DC
August 5-6 - Tennessee Statewide Managers Meeting To Be Conducted by NABM in Murfreesboro, Tennessee
September 28-30 - Northeast Vistar Buying Show in Atlantic City
October 1-4 - National Association of Convenience Stores Show in Las Vegas
October 13-15 – Atlantic Coast Exposition in Myrtle Beach
November 14-15 - Coffee, Tea, and Eater Show in Las Vegas
Note that NABM will be meeting on July 7 in conjunction with the NFB National Convention. NABM is also planning training in connection with the September VISTAR show in Atlantic City. More information will be coming out about this event.
ON THE ROAD AGAIN – NABM is beginning to get back out on the road in 2022, although many presentations are still virtual; however, more and more states are starting to plan in-person meetings so much more travel is expected by the fall.
Tidbits and Trivia
- Did you catch the reference to the $64,000 question earlier? Do you know where that term originated? It came from a 1950s TV show called “Take It or Leave It” where contestants answered questions worth up to $64,000. That would be over half a million dollars today. It was one of the most influential TV shows in history but folded after 3 seasons due to the infamous game show scandal.
- Which 2 NABM Board members played college football? Think about it. The answer is below.
- Congratulations to Barbara Badger who handles most of NABM’s administrative and fiscal duties. Her 4th grandchild, Anna Jean, arrived on May 10th.
- Did you know the first chewing gum dispensed from a vending machine was Tutti Frutti? Yep, and the year was 1888.
- Here’s another bit of vending trivia. Cliquot Club ginger ale was the first canned soft drink. The year was 1938.
- The first American coins were half dimes - spelled "dismes" - which were first produced in 1792. They were worth 5 cents. But it was not the first circulating coin. These were one cent pieces which came out a year later.
- Star Crunch Cosmic Cookies were chosen as the #1 Cookie & Pastry for Readers' eChoice 2022. Congratulations to Little Debbie and McKee Bakery.
- Interested in some history on vending? You may want to check out this website https://www.mashed.com/628208/the-untold-truth-of-vending-machines/
- Check out NABM’s new website at www.blindmerchants.org. It is now on the same platform as other NFB sites which helps the branding of the organization.
ANSWER: Who are our former college football players? NABM President Nicky Gacos played safety for the Pitt Panthers and Mike Colbrunn played for the North Dakota College of Sciences which is a junior college.
Check Us Out on Facebook – Like the National Association of Blind Merchants on Facebook and keep up with the latest and greatest when it comes to Randolph-Sheppard.
Money Matters –NABM needs your tax deductible donations in order to continue the work we do. Much of what NABM is able to accomplish is due to the generosity to many of our readers. Please send checks to:
National Association of Blind Merchants
7450 Chapman Highway, #319
Knoxville, TN 37920
You can also donate by going to our website at www.blindmerchants.org where we have added a new way you can contribute. We can create a bank draft for you so you can sign up for monthly giving. Contact Barbara Badger at Barbara@merchants-nfb.org if you are interested in setting up bank draft donations. You can also designate the purposes for which you want your donations to be spent.
Share Your News with Everyone– Help us keep everyone informed about what is happening around the country. Let us hear from you. Tell us what is going on in your state. What is happening in one state affects what is going on in another. The Blitz offers the best vehicle to keep everyone updated on what is going on out there.
Blackstone Consulting Inc.
Brown, Goldstein, and Levy
Three Square Markets
RSA Management Group
Southern Food Service
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The National Federation of the Blind knows that blindness is not the characteristic that defines you or your future. Every day we raise the expectations of blind people, because low expectations create obstacles between blind people and our dreams. You can live the life you want; blindness is not what holds you back.