The Blitz, Fall, 2022 Edition
The Blitz, Fall, 2022 Edition
2022 Fall Edition
We have gotten lots of feedback from our last Blitz. We heard words like “”great”, amazing”, “outstanding”, “informative”, “thorough.””, and “well-written.” We also heard the word “long” more than once. Yeah, we get it. It’s not intentional. There’s just so much to report. Let’s see if we can do better this time.
BLAST on the Boardwalk a Huge Success – Approximately 200 people converged on Atlantic City in September for NABM’s BLAST on the Boardwalk. The conference, which started out as a regional conference, attracted participants from 30 states. It was a top notch agenda and the Buying Show sponsored by Vistar featured 165 booths. NABM appreciates the partnership with Vistar and looks forward to sponsoring future events in collaboration with them.
Ray Hopkins Receives Lifetime Achievement Award – At its BLAST on the Boardwalk, NABM presented Ray Hopkins with a Lifetime Achievement Award. It was only the second such award ever presented by NABM. Ray began his career as a licensed blind vendor in Oklahoma before joining the state agency in a non-Randolph-Sheppard capacity. He worked his way to the head of the agency. He later went to work for RSA as its Randolph-Sheppard Specialist before migrating a little south to become the Commissioner of the Virginia Department for the Blind & Visually Impaired. Ray served as President of the National Council of State Agencies for the Blind (NCSAB) and was a staunch supporter of the priority throughout his career. Ray recently retired in Virginia but you can expect him to stay involved.
Pandemic Continues to Impact – When talking with members of Congress in conjunction with the National Federation of the Blind about the plight of the Randolph-Sheppard Program, NABM was asked to provide data that supported our story. We were happy to comply and put together a short survey which we asked the SLAs to complete. 36 states replied. Here are the highlights:
- Only 35% of vending facilities are operating at or near pre-pandemic levels.
- 65% are operating at a level significantly less than prior to the pandemic or remain closed entirely. Nationally, this would mean that over 1100 blind entrepreneurs continue to feel the devastation of the pandemic.
- 30% remain closed or operating at a minimal level. Nationally, this means over 500 blind entrepreneurs are still closed or operating at a minimal level.
- An estimated 146 facilities have been permanently closed and approximately 168 blind entrepreneurs have left the program.
- Approximately 16 blind entrepreneurs died from COVID.
These numbers could not be more devastating and the outlook for the situation improving anytime soon is quite frankly bleak.
NABM Requests Dollars for Innovation – In response to the above, NABM has asked the Department of Education to allocate a portion of unspent VR dollars back to the states to use toward innovative projects in the Randolph-Sheppard Program. States turned back approximately $273,000,000 in unspent funds. There are many legitimate reasons that this figure is so large but those are not germane to this discussion. The important thing is RSA has the opportunity to invest in the future of the program. We are asking that states be required to apply for grants to fund innovative projects that will create or expand opportunities for blind entrepreneurs. NABM greatly appreciates the National Council of State Agencies for the Blind writing a letter of support to Education. We also appreciate the joint efforts with the National Federation of the Blind to educate Congress on this issue. Jeff Kaloc and John Pare have been invaluable. Stay tuned on this one. We remain cautiously optimistic.
Let’s Play Is it Equipment or Not? – Most of our readers are familiar with the requirement that SLAs must get prior approval to buy equipment and equipment in most cases is defined as anything over $5,000. However, RSA has never said anything about the purchase of items costing less than $5,000 which has always been allowed. The result was prior approval was not required for items costing less than $5,000. So, SLAs have continued on their merry way purchasing items costing less than $5,000. Then RSA had an epiphany. The law says grantees can buy equipment and if equipment is defined as anything costing over $5,000, then SLAs cannot buy anything costing less than that amount using federal or set aside dollars because those items are considered to be supplies and not equipment. Hang with us here. So, RSA goes to OMB and says we have a problem and asks for an exemption to allow Randolph-Sheppard to use federal dollars to purchase anything costing over $1,000 rather than $5,000. They effectively changed the definition of equipment. This is not a bad thing although the $1,000 seems a bit arbitrary. Why not $500 or even $250? They announced this to the states who were totally blindsided by the news they were not allowed to use federal dollars to purchase equipment. Wait, we can’t buy coin mechs or credit card readers? Are you saying we can’t buy microwave ovens? What about small refrigerators that cost $800? The answers are NO, NO, and NO EXCEPT when establishing a new vending facility. If an SLA is opening a new location, they can buy supply items and items costing under $1,000. What does this mean for existing blind entrepreneurs. Not much if your state uses state dollars or state unassigned income to buy these items. But most states use set aside and/or federal dollars. In those states, it means the blind entrepreneur buys their own coin mechs and credit card readers unless they come as part of the machine when you buy it. Vendors will buy their own microwave ovens. And so forth and so on. In trying to fix a problem, RSA has made life exponentially harder for SLAs and has threatened the viability of some vending operations at the worst possible time. No, we are not throwing daggers at RSA. We totally understand the predicament in which they found themselves. We are confident RSA anticipated these new problems being created and has a plan to try to fix it. It won’t be a quick fix but we trust RSA understands the status quo is damaging to a program Congress has charged it to administer.
DOD News and Notes
A-FIT – Have you ever heard of the Army Food Innovation and Transformation? Well, if you are an SLA or a vendor on an Army base, you may want to familiarize yourself with it. The Army wants to eliminate many of its traditional mess halls or what it calls legacy feeding and replace them with a college campus style model. You say it will never work and you may be right. But the Army recently awarded a contract to a company to build-out, install, and operate what amounts to food courts at Forts Benning, Jackson, Bragg, and Drum. It is a pilot project or proof of concept but the Army has indicated that if the pilot is successful, it will move to other bases and dining halls. Sure, it will take a few years but we cannot be short-sighted. At this point, it is hard to say what, if any, impact such an initiation will have on existing Randolph-Sheppard contracts or future opportunities on military bases. The Army has indicated that no current contracts will be descoped so the financial impact to current dining contracts will be minimal. It is unrealistic to think that future contracts will not be affected. Upon learning of A-FIT, NABM immediately advised RSA of this initiative and asked that it make itself available to the Army for technical assistance on how the Randolph-Sheppard priority should apply. We notified the 4 states and have had multiple conference calls with them. We also had the opportunity to meet with the Colonel in charge of this project and a member of his team to learn more and to educate them about Randolph-Sheppard. Those conversations were positive and continue. We were assured that Randolph-Sheppard will have a place in this new model. Exactly what that might look like is still unclear. The goal is to turn a potential threat into opportunities and to find common ground. We cannot tell the Army what kind of food service it will have. We just need to make sure that whatever model they choose that our priority is recognized. We will have much to report on this in the coming weeks.
Langley Air Force Base – We are still feeling the repercussions of the GAO ruling in the Navy Ventura County protest. As you will recall, there was almost universal agreement that the Randolph-Sheppard priority applied to all military dining contracts. That is until the GAO went against the courts and ruled that the priority does not apply to dining facility attendant contracts. Although not legally required to do so, some contracting officers feel compelled to abide by the GAO ruling. Langley Air Force Base is the latest. And Langley is taking it to another level. They have issued a Sources Sought seeking an AbilityOne agency to provide its food service. This brings back to the forefront that age old battle between Randolph-Sheppard and AbilityOne; one that had been put to bed long ago. The Virginia SLA will probably end up in arbitration over this and we can expect several other states to have to do the same to protect the priority in their states.
9th Circuit Ruling – On the positive side, the 9th Circuit Federal Court of Appeals did rule that the priority applies to these same DFA contracts. The case was brought by the Hawaii SLA in regards to the contract at Schofield Barracks. NABM filed an amicus brief in that case and the ruling paralleled the arguments advanced in that brief.
Marine Arbitration Panel Ruling – The South Carolina SLA won its arbitration with the Marines over its east coast dining contract. The $1 Billion contract was awarded to Sodexo 4 years go. The arbitration panel ruled the Marines violated the Act and instructed them to rebid the contract. That is not a very realistic option and we have seen no indication from the Marines that they intend to comply. Perhaps, there is some middle ground and a settlement can be reached but no such talks are underway at this point.
GITMO Ain’t Happening – South Carolina’s effort to exercise the priority at GITMO which is in Cuba has failed. The Agency filed for arbitration but RSA dismissed the case. This is not big news. What is big news is the reason given for the dismissal. RSA stated in the dismissal that SLA’s are restricted to operating within their own borders. NABM does not believe the law supports that conclusion but if it is official RSA policy it means states who are currently operating outside of their borders, and there are many examples, can no longer do it. Isn’t that a logical conclusion? Hey Tennessee. Get ready. 80% of Fort Campbell is in Tennessee and the Kentucky SLA is now forbidden from operating those mess halls. It also limits Randolph-Sheppard’s ability to bid on multi-state contracts which RSA has previously said was permissible. South Carolina declined to appeal the denial. NABM joined with the Georgia and Nevada SLAs in writing a letter to RSA asking that the ruling be modified so that it does not have the unintended consequences. FSIG, who would have been South Carolina’s teaming partner, also submitted a brief. NABM is hopeful that RSA will correct the situation. There are many ways to get to a denial without harming other states who have nothing to do with this action. Here again, we are confident RSA will find its way to that place.
Warner Robbins – When we are reporting mostly about arbitration and court cases, it is good to report when the military gets it right. Congratulations to the Georgia SLA who just saw its contract at Warner Robbins renewed without bidding and without litigation. The Air Force and SLA engaged in direct negotiations to reach an agreement. Why don’t more contracting officers go this route?
Fort Leavenworth – The Kansas SLA is the incumbent here but was not placed in the competitive range in the most recent solicitation. The SLA filed for arbitration and the parties availed themselves of RSA’s dispute resolution. And good news! The parties agreed. The Army agreed to allow the SLA to rework its bid and be placed in the competitive range. But that doesn’t mean the SLA will get the contract renewal. If it does not, another arbitration will likely be filed. Readers will recall that this is the solicitation that was small business set aside and 2 blind vendors who are 8a certified bid. Both were in the competitive range. This means that Randolph-Sheppard has one shot at the contract but blind entrepreneurs have 3. This one is going to be fascinating to watch.
Camp Dawson – Congratulations to the West Virginia SLA and its blind entrepreneur Bill Ramsey for landing that state’s first military dining contract. Bill and his teaming partner Blackstone Inc. took over that contract on October 1.
NABM Moves BEPLT Training to the Chicago Lighthouse for the Blind – Seven years ago, NABM and the Hadley Institute for the Blind & Visually Impaired entered into an agreement to create the first ever national on-line Randolph-Sheppard entry-level training curriculum. Today, 34 states use it as part of their training of new vendors and over 300 individuals have completed the training. However, that training has now moved to The Chicago Lighthouse for the Blind. Hadley recently changed its focus and has moved away from traditional coursework. Fortunately, the Lighthouse was excited to step in and take over. NABM and the Lighthouse recently finalized an agreement. Colleen Wunderlich and Scott Cass who created the training at Hadley have moved to the Lighthouse so customers will see no change. NABM looks forward to enjoying a long and productive relationship with the Lighthouse and to the next 300 trainees.
Build America Buy America Act (BABAA) – Many have asked how this new law will impact Randolph-Sheppard. We cannot say with absolute certainty because RSA has not provided any practical guidance to date. However, based upon our reading and understanding of the law, the impact will be minimal. There was some concern initially that vending facility renovations could be impacted but SLAs do not typically buy steel or cabling when doing renovations and that is the primary focus of the law. Until we hear otherwise, we will not worry much about this one.
Is an EV Charging Station a Vending Machine? – We don’t know. Well, actually we do know. We are just waiting on RSA to say it. This is an issue because if an EV charging station is a vending machine then it could open up possibilities for placing them at interstate rest areas which could help boost income for blind vendors. But the Department of Transportation will not issue guidance allowing such placement until RSA issues some sort of ruling or guidance. We cannot say with any certainty but we believe RSA is getting closer to doing something.
Employee or Contractor? The Issue Won’t Go Away - The information below is not intended to flame the debate of whether or not blind entrepreneurs are technically employees of the SLA. It is meant to warn blind entrepreneurs that under these new proposed rules by the Biden Administration, it will be increasingly harder to categorize workers as contract labor. The following is from NAMA’s weekly government affairs update.
The United States Department of Labor (DOL) unveiled a proposed rule this week to help employers distinguish whether a worker is an employee or an independent contractor.
The rule as written will make it harder for employers to classify workers as contractors by implementing an economic realities test.
The economic realities test applies a 6-factor test to determine a worker’s status:
- Degree of skill required
- Investment in specialized equipment
- Permanence of the relationship
- Opportunity for profit or loss
- Right to control
- Integral part of the business
Click here for more information on the economic realities test.
In addition, the proposal weighs whether the work at issue is “integral” to the employer’s business. The rule is similar to one the Obama administration created that was dismantled under the Trump administration.
Catch the Latest Podcast – Be sure to go listen to Episodes #9 and #10 of the We R Randolph-Sheppard podcast. In Episode 9, you get to eavesdrop on Terry and Nicky as they sit at the bar with friends Ed Birmingham, Michael Talley, and Joe Shaw. In Episode 10, we do the same thing with some of our state agency friends. That episode drops November 1st. Click on the link below or get it wherever you get your podcasts.
Convention Highlights – The National Federation of the Blind held its first in-person convention in 3 years in New Orleans in July. It was a great convention. NABM held a short training followed by its annual business meeting. Several speakers presented on important topics to Randolph-Sheppard. The most important part of the business meeting was the election of officers. Congratulations to Nicky Gacos who got elected to another 2-year term as President. Nicky has big plans for the next 2 years. Here is the full slate of officers:
President – Nicky Gacos, New Jersey
1st Vice – Ed Birmingham, Illinois
2nd Vice – Michael Colbrunn, Minnesota
Treasurer – Pam Schnurr, Indiana
Secretary – Sharon Treadway, Tennessee
Board Members – Zach Snow, Georgia;
Melissa Smith, Tennessee, Melba Taylor, Maryland;
Chad Kenney, West Virginia; Max Duarte, California;
Lewanda Miranda, Oregon; Barbara Manual, Alabama;
Joe Higdon, Indiana; Annette Lutz, Ohio;
Harold Wilson, Virginia;
Welcome New Committee Chairs - Several new Committee Chairs have taken office since our last Blitz. Welcome the following:
- New Hampshire - John Accaputo
- South Carolina - Janice Smith
- Indiana - Joe Higdon
- Colorado – Gladys Crespo
- Pennsylvania- Judy Schoenly
- Idaho – Tony Bridges
- Ohio – Frank Bragassa
- Iowa – Dwain Sundine
- Connecticut – Keith Haley
- New Mexico – Michael Lavoto
It is with a heavy heart that we report that Kevin Bodtka, the former Chair in Iowa, passed away in September. Kevin had served that program well and NABM expresses its deepest sympathies to his family and friends.
You Say Hello and I Say Goodbye – It is hard to imagine but in the last 15 months or so, there have been 19 states who have experienced turnover in the BEP Director position. Currently, by our count, there are at least 9 openings, some with acting or interim directors in place. Since the last issue of The Blitz, we said goodbye to Nathan Pullen in Arizona, Matthew Miller in Kansas, Lizet Hinojosa in Texas, Melanie Shardella in Rhode Island, Tamela Meeks in Michigan; and William Webb in North Carolina.
At the same time, we are happy to welcome as new BEP Directors James Hull in Michigan, Mathew Nemmers in Iowa, and Andy Martin in Kansas. We may have missed Melissa Anderson in Missouri last time. We will hold off on the interims right now but we are expecting several announcements soon. But if you want to get into BEP administration or move up, contact NABM and we can point you to the openings.
Trivia and Tidbits
- Did you know the bacon cheeseburger first appeared on a restaurant menu in 1963? It was at an A&W Restaurant in Lansing, Michigan.
- Which candy bar was named after the family’s horse? Think about it. The answer is Snickers.
- Could there be an announcement soon about a future BLAST? Dunno. You have to wait and see.
- If you draw Social Security or SSDI, you will be getting an 8.7% cost-of-living increase effective in January.
- The Mississippi BEP and blind vendors recently gave Terry Smith an award at their annual training conference recognizing his passion for and commitment to Randolph-Sheppard.
- Could this be the first Blitz shorter than 10 pages in…well….forever?
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 of 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.
Blackstone Consulting Inc.
Brown, Goldstein, and Levy
Three Square Markets
RSA Management Group
Southern Food Service
Rolling Hills Food Service
GET THE BLITZ-READ THE BLITZ-SHARE THE BLITZ
PLEASE FEEL FREE TO SHARE THE BLITZ WITH OTHERS AND DISTRIBUTE ON YOUR LISTSERVS. WE WANT ALL BLIND ENTREPRENEURS, BEP ADMINISTRATORS, and OTHER STAKEHOLDERS TO BE INFORMED.
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.