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LEGISLATIVE AND BEA UPDATE
By: Ron Eller, RSVA Legislative Chairman
November 15, 2010 was the final day of existence of the BEA. Catriona Macdonald, with her staff and all of the blind consumer organizations showed we could work together as one organization. With one united voice we worked together to protect and make better the Randolph-Sheppard program for all vendors nationwide. The BEA has proven we must have a presence in Washington, D.C. to look out for the best interest of the Randolph-Sheppard program. We thank Ms. Macdonald and her staff and look forward to working with her in the future on other Randolph-Sheppard issues.
Our immediate concern is the Javits Wagner-O’Day Act of 2010, Bill H.R. 5983. There is no mention of Randolph-Sheppard program in the bill. If H.R. 5983 becomes law, there are provisions in the bill that will directly affect the R-S program. Please contact your congressional representatives and urge them not to support H.R. 5983 without changes to protect the R-S program. A list of changes and talking points why RSVA opposes certain parts of the Bill can be obtained from the RSVA national office, or please refer to the BEA filing presented below. You can contact your congressional offices by calling 202-224-3121.
Background, Issues and Recommendations for the
Reauthorization of the JWOD Act
Background: Conflict with the Randolph-Sheppard Act
The Randolph-Sheppard Act, first signed into law more than 70 years ago, remains unique in legislation benefitting persons with disabilities in its creation of entrepreneurial, rather than employment, opportunities for persons who are blind. Randolph-Sheppard entrepreneurs own and operate businesses providing high quality, competitively-priced food and sundries on federal and state properties. Their contracts include operating troop dining facilities at approximately 40 military installations nationwide. Many Randolph-Sheppard entrepreneurs have been recognized for excellence in food service, with several receiving global Hennessy, Connelly and Gold Plate awards from the U.S. Armed Services.
Today, when the national unemployment rate for the blind exceeds 70%, more than 2,400 blind men and women are able to support their families, pay taxes and contribute to our economy because of the opportunities afforded them under the Randolph-Sheppard Act. Randolph-Sheppard operations provide jobs to more than 15,000 Americans in addition to the blind entrepreneurs who run them. Including blind entrepreneurs, nearly one-third of persons working in Randolph-Sheppard businesses are persons with disabilities.
Beginning in the 1990s, a conflict developed between the Randolph-Sheppard program and programs operated under the Javits-Wagner-O’Day Act. JWOD non-profit agencies receive non-competitive federal contracts for a wide range of goods and services, in exchange for employing persons with severe disabilities to generate at least 75% of their non-managerial labor hours. The conflict between the programs related to procurement of contracts for complex food services such as troop dining. Early last decade, this question was resolved by a pair of court cases, NISH v. Cohen (247 F.3d 197, 4th Cir. 2001) and NISH v. Rumsfeld (348 F.3d 1263, 10th Cir. 2003), which established that any contracts for full food service should be competitively bid and subject to the Randolph-Sheppard priority. The Subsequent National Defense Authorization of 2007 created a “no-poaching” provision that protected contracts that had been placed on the procurement list or contracted under the Randolph-Sheppard priority as of August 1997.
The Blind Entrepreneurs’ Alliance is concerned by a recent acceleration of full food service contracts being proposed for addition to the Procurement List for non-competitive allocation to JWOD non-profit agencies. Since August of 2009, when a full food service contract for Camp Covington, Guam was added to the Procurement List by the Committee for Purchase, full food service contracts for NAS Meridian in Mississippi, Selfridge Air National Guard in Michigan, and a Coast Guard installation at Elizabeth City, North Carolina were also been proposed for addition (in some of these cases, the Randolph-Sheppard community has been successful in keeping the contracts in the competitive realm). Under the law, these contracts should be competitively bid subject to the Randolph-Sheppard priority. If these contracts were to be placed on the Procurement List for JWOD non-profits, they will not be competitively bid, thus eliminating opportunities for blind entrepreneurs and their employees.
The Blind Entrepreneurs’ Alliance is also concerned about the breaking apart of Randolph-Sheppard contracts, to place portions of existing contracts on the Procurement List or require that portions be subcontracted to Ability One nonprofits upon renewal of the contracts. The “no poaching” provision, passed as part of the FY2007 Defense Authorization, provided that any contract that procured subject to Randolph-Sheppard at the time that law was passed is to remain in the competitive arena and available to blind entrepreneurs. We view the placement on the Procurement List, or forced subcontracting, of any portion of a Randolph-Sheppard contract as a violation of the no-poaching provision. Recent instances of such violations have occurred at Ft. Richardson, Alaska; Ft. Carson, Colorado; Ft. Bragg, North Carolina; and Dover Air Force Base, Delaware, among others.
While we are concerned about the recent decisions of the Committee for Purchase, we are equally concerned about the ways in which those decisions have been made. The Committee operates with a complete lack of transparency or accountability. Basic information, including the scope of work of contracts proposed for the Procurement List, the timing of meetings to consider placement of contracts on the Procurement List, and timing of votes, are not made publicly available. Discussions are not open to the public. There is no objective appeals process for reconsideration of Committee decisions, and, short of costly lawsuits, no accountability for decisions made. Once a contract is placed on the Procurement List, there is no viable process for removing it from the list unless the non-profit agencies decide the contract is no longer profitable or wanted.
Recommendations for HR 5983
The Blind Entrepreneurs’ Alliance supports the goal of creating employment opportunities for persons who are blind or have other significant disabilities, but is concerned by several provisions in H.R. 5983. We also believe that the legislation misses several important opportunities to address the lack of transparency and accountability with which the Committee for Purchase operates.
In order to ensure that the goals of the JWOD Act are achieved in a manner consistent with the Randolph-Sheppard Act, the Blind Entrepreneurs’ Alliance offers the following policy recommendations:
- Publish the Scope of Work: The Committee for Purchase should be required to publish a scope of work as part of the Federal Register notice announcing the intent to place a particular contract on the Procurement List. Publishing the scope of work for food service contracts is essential to an independent determination of whether the contract is subject to the Randolph-Sheppard Act or appropriate for addition to the Procurement List.
- Time Limit Contracts on Procurement List: Once a contract is placed on the Procurement List, it is, to all intents and purposes, permanently removed from competition. Placement of large contracts on the Procurement List should sunset after five years, at which point the contract should be returned to the competitive arena or be subjected to scrutiny and an objective renewal process that includes input from all affected stakeholders.
- Create a Process for Removal of Contracts from Procurement List: In effect, there is currently no viable process for a contract to be removed from the Procurement List – even if the federal agency is dissatisfied with the services provided – unless no non-profit agency wants the contract. The reauthorization should create a process by which other affected parties can challenge placement of contracts on the List, and whereby contracts can be removed when they are placed on the List in error and/or when the services provided are not acceptable to the federal purchaser.
- Prevent Abuse of “Compelling Need”: The reauthorization legislation creates broad authority for the Committee to define a “compelling need.” In cases of “compelling need,” the legislation would give the Committee wide latitude to place virtually any contract on the Procurement List for five years. This provision is fraught with potential for abuse. “Compelling need” should be clearly and narrowly defined in the legislation and understood to apply only in cases of true emergency.
- Create an Objective Appeals Process that is Accessible to Blind Entrepreneurs and other Affected Parties: The appeals process outlined in H.R. 5983 is entirely internal, and is available as a recourse only to JWOD non-profits. The appeals process must create an opportunity for other affected entities, including Randolph-Sheppard State Licensing Agencies and blind entrepreneurs, to appeal placement of contracts on the Procurement List. Such appeals should be handled by an impartial entity, such as the GAO.
- Broaden the Authority of the Inspector General: While we applaud the creation of an Inspector General for the Committee for Purchase, we are concerned about the IG’s ability to act truly independently in an agency the size of the Committee. We are also concerned that the Inspector General created in H.R. 5983 has been given the authority to investigate cases of noncompliance with the JWOD Act, but has no authority to look into violations of other federal statutes, such as the Randolph-Sheppard Act.
RSVA SPECIAL INTERESTS
I expect by now almost everyone has read or heard about the content of the BEA White Paper. It has been presented as “some thoughts on modernizing the Randolph-Sheppard Program”. With that in mind, this paper has been circulated throughout the country and even to Capitol Hill. RSA Commissioner Rutledge has received a copy, and during her speech at NCSAB, stated she was awaiting staff measurement and review of the document. Please give this document some serious thought and let your concerns be known to RSVA. Change can be good, however, we must be cautious of how and what we change.
ACB 2011 Legislative Seminar
RSVA members and friends, please put these dates on your calendar. Many of you visit Capitol Hill during the ACB Legislative Seminar. Please read the following information as it is time to begin making plans to attend the midyear ACB Board meeting, the Affiliate Presidents’ meeting, and the 2011 ACB Legislative Seminar. All of these meetings will be held in February, 2011, in Arlington, Virginia. Here’s the scoop!
Dates for the Affiliate Presidents’ meeting will be Saturday, February 26 and Sunday February 27, 2011. The Legislative Seminar will be held from Sunday, February 27 through Tuesday, March 1. The ACB midyear Board meeting will actually be the first meeting, and will occur on Friday, February 25, 2011.
All of these meetings will take place at the Holiday Inn National Airport Hotel again, which is located at 2650 Jefferson Davis Highway in Arlington, Virginia. Room reservations can be made by calling either 1-800-Holiday, or calling the hotel directly at 1-703-684-7200. Rates are $119 per night plus tax, for singles and doubles. When calling to reserve a room, don’t forget to mention that it is for the American Council of the Blind meetings. Make your reservations early! More information about the meetings themselves will be coming soon.
The ACB Legislative Seminar begins Sunday, February 27, 2011 and will conclude with visits to congressional offices March 1st. The host hotel is the Holiday Inn in Arlington, Virginia. ACB will be sending out registration forms.
Get to know your legislators. On the national and state level get to know who represents you. Call the state and national offices and congratulate your representatives on their election or re-election. It does not matter if you agree or disagree with their views; let them know you are interested and concerned about laws that affect your life and your pocketbook. Although the BEA is gone the road continues to be covered with land mines. We must continue to fight for the rights of all Randolph-Sheppard managers.
UPDATING THE SACAGAWEA DOLLAR COIN
The U.S. Mint said it will update the design of the Native American $1 coin next year, leaving the familiar portrait of Sacagawea on the obverse (heads) side while replacing the reverse with a new image of a peace pipe being passed from hands.
The Native American $1 Coin Program, mandated by Congress, requires the U.S. Mint to issue $1 coins featuring designs celebrating the important contributions made by Indian tribes and individual Native Americans to the history and development of the United States. It issued the first coin in the program in 2009, which celebrates agriculture with the representation of a Native American woman planting seeds in a field on the reverse.
Next year's coin commemorates a historic event that occurred in 1621 when Puritan English settlers at Plymouth Bay forged an alliance with the Wampanoag Nation, a group of tribes that lived in what is now southeastern Massachusetts and Rhode Island. It was the first formal written peace treaty between the Wampanoag and European settlers.
The reverse design includes the required inscriptions, "United States of America" and "$1" along with the additional inscription "Wampanoag Treaty 1621." It was designed by Richard Masters, an artist in the Mint's Artistic Infusion Program, and sculpted by the Mint's Joseph Menna.
The obverse (Sacagawea) design, introduced in 2000, was created by sculptor Glenna Goodacre. Inscriptions on the obverse are "Liberty" and "In God We Trust."
Like the Presidential $1 coins, the Native American $1 Coins are minted in a distinctive golden color with the year, mintmark and "E Plurbius Unum" edge-lettered.
The Mint gave no date for release of the 2011 Native American $1 coin. Four new U.S. Presidential coins will also be issued in 2011. While Presidential coins have proven more popular with collectors, the law requires at least 20% of $1 coins minted each year to be of the Native American series.
SENATE PASSES COIN MODERNIZATION ACT
The U.S. Senate has passed the Coin Modernization, Oversight, and Continuity Act of 2010, which is endorsed by the National Automatic Merchandising Association (NAMA). The legislation, designated H.R. 6162, passed the House several weeks ago, passed the Senate on December 1, and is now on its way to President Obama. The bill requires the Treasury to consider the effects on payment validation systems, when evaluating the coin compositions.
“This is a major victory for every member of the vending industry” says NAMA senior vice-president of governmental affairs Ned Monroe. “New coin validation costs have been estimated to cost our members millions of dollars, and now with this legislation we have successfully protected them from potential unnecessary and costly burdens.”