[vendtalk] Fw: From Terry Smith

Mon Jun 25 19:11:52 UTC 2012

From: Lisa Vanry 
Subject: FW: From Terry Smith

From: bep_state_directors-owner at ncsab.org [mailto:bep_state_directors-owner at ncsab.org] On Behalf Of Michael Jones
Sent: Friday, June 15, 2012 12:44 PM
To: bep_state_directors at ncsab.org
Subject: [BEP State Directors] From Terry Smith

The BEI BLITZ

It is very important that the Randolph Sheppard community be kept abreast of important national issues affecting blind entrepreneurs.  We also want our community to know what the Blind Entrepreneurs Initiative is doing in support of the Randolph Sheppard Program.  Therefore, we will be distributing this monthly update which we hope will be circulated throughout the Randolph Sheppard community.  We have proven that in times of crisis we can activate the communication networks and mobilize quickly.  The battle over commercialization of the interstate rest areas and the Portman Amendment is just one example.  However, when there is no pending crisis, there is a tendency to think there is nothing going on.  The fact is there is always activity and pending threats.  There are successes and failures.  We want the Randolph Sheppard community to be aware of these because only by being informed can blind entrepreneurs effectively work together to protect what we have and build a program for the future.  

Here are some of the highlights in recent weeks:

Colorado Arbitration Decision Is In - The State of Colorado filed for arbitration against the U.S. Air Force when its bid for the dining at the Air Force Academy was deemed to not be in the competitive range.  The AF had said that in order to be in the competitive range a bid had to be within 5% of the low bid.  The State's proposal was not.  The panel upheld the 5% as a legitimate range which is of great concern to the Randolph Sheppard community.  However, the panel also ruled that the AF had an obligation to consult with the Secretary of Education who has the final say.  Therefore, the panel ruled that even if a bid is not within the competitive range, the Secretary could determine that it is competitive and the contract must be awarded to the SLA.  That was a most unexpected twist that effectively renders a competitive range meaningless.  We do not know if the AF will appeal to federal court.  Stay tuned.  

Michigan Commission for the Blind in Trouble -  The Governor of Michigan issued an executive order disbanding  the Commission for the Blind.  The plan included moving the business enterprises program to another state agency and creating two separate business enterprises programs - one for blind vendors on federal properties and one for blind vendors on state properties.  The vendors on federal property would continue to be Randolph Sheppard vendors.  Those on state properties would not.  Consumers were outraged.  Dr. Marc Mauer, President of the NFB,  and First Vice President and former RSA Commissioner Dr. Fred Schroeder personally got involved in the fight to preserve the Commission and the Randolph Sheppard Program.  Terry Smith, acting on behalf of the BEI, provided support on the Randolph Sheppard piece.  This included providing information to RSA on his interpretation of the law and why the actions being proposed by Michigan were illegal.  NFB hired a lobbyist to further assist with the efforts in Michigan.  The issue remains unresolved but we can tell you that the Governor rescinded the executive order and is preparing a new one that will presumably preserve the Commission.    At the urging of the BEI, RSA took a strong stand against two separate programs.  RSA will not allow the business enterprises program to be moved to another state agency, and will not allow another state agency to serve as a nominee agency.  The State will also not be allowed to use federal dollars in the State business enterprises program if it is separated from the federal.  We applaud RSA for its strong stance in this matter.  We still don't know the outcome and we must share with you that the State is considering the unprecedented move of withdrawing as the State Licensing Agency.  The impact of such a move as that could have national implications.  

Is Maine the Next Threat? - We have had a number of conversation with our contacts in Maine and there is a very real possibility that during that state's next legislative session the separate agency for the blind and the priority for blind vendors may be in jeopardy.  The Governor presumably wants to open up the state BEP to people with disabilities other than blindness.  The BEI will obviously join in any fight against such an effort.  This may be included as part of a larger strategy to abolish the separate agency for the blind and combine it with the general agency - again something the NFB and BEI will oppose.  Admittedly, the program in Maine is very small.  There are only 8 blind vendors but that would be 8 opportunities lost and we must fight for all blind vendors.  Stay tuned.   

Tennessee Blind Vendors Prevail -   The Tennessee Business Enterprises Program, one of the flagship Randolph Sheppard Programs in the country, recently faced a legislative challenge to its priority to operate vending facilities on state college and university campuses.  Tennessee has 32 blind vendors currently working on college campuses and the bill that was proposed would have put every one of them out of work.  The colleges claimed that a food court could be interpreted as a vending facility and therefore they needed to be exempt from the law to protect their campus wide food services.  It was of course a bogus argument since TBE had made it clear that it had no interest in the food courts.  The bill had lots of momentum but the blind vendors got organized.  Scott Young, President of the Tennessee Association of Blind Merchants and Billy Brumlow, Chairman of the Committee of Blind Vendors took the lead in this effort.  Terry Smith, acting on behalf of the BEI, got involved and led the fight.  Eventually, a compromise was reached that simply clarifies that the TBE has no authority to take the food courts but TBE still retains its current 32 locations and maintains a priority to manage vending facilities in any new buildings that are constructed.  The Governor signed the bill into law last week and several blind vendors were on hand for the signing.  There is a lesson to be learned from the Tennessee blind vendors on how to effectively lobby for their program in the state legislatures.    

Don't Rest on the Rest Areas - Yes, the Portman Amendment was soundly defeated but don't be misled into thinking the battle over commercialization is over.   The Ohio Department of Transportation recently issued an RFI looking at options for commercializing its non-interstate rest areas.  The blind vendors currently receive income from vending machines at these rest areas.  Fortunately, the DOT has assured the blind vendors that they will continue to receive funding at the same level if the rest areas are in fact commercialized.  The DOT also agreed to keep open two interstate rest areas that were previously considered for closure and which have blind vendors on site servicing the vending.  One can only surmise that such concessions were influenced in part by the rousing defeat of the Portman Amendment and their lack of appetite to take on the blind vendors again.  We continue to monitor that situation and will be very interested to know what kinds of proposals they receive if they do issue and RFP.  Still, the threat of rest areas closing remains a real threat as states face ever increasing demands on budget dollars.  Several states have announced such closings although not on a large scale.  The latest threat is an effort to convert some interstate highways to toll roads.  Unbeknownst to most of us, the law actually allows up to three states to apply to convert interstate highways to toll roads.  Missouri, North Carolina, and Virginia have applied.  The Missouri effort appears to have died in the state legislature.  However, North Carolina and Virginia have submitted a joint application to convert a portion of I-95 to a toll road.  This is concerning because research shows that traffic will be reduced by 20% which means blind vendors at rest areas on that interstate will face a 20% reduction in potential customers.  We continue to work with various partners in the private sector to monitor this matter.  

DOD Vending Income Doesn't Always Add Up -  We have been working with one state that has discovered discrepancies in the way the Department of Defense sometimes  calculates commissions that it pays to SLA's from vending machines on DOD properties.  The state has been short-changed thousands of dollars it would seem which means the blind vendors have been short-changed as well.  DOD apparently is not paying commissions on the first $3,000 of income and there is also an issue as to how the 100%, 50%, or 30% is being applied.  We are working with RSA and NCSAB on trying to resolve this issue.  Hopefully, we will have more to report soon.   

VA Still No Friend - Some say the fight with the VA is one that can't be won.  They may be right but the BEI refuses to give up.  In light of the Presidential Memorandum in support of Randolph Sheppard, the BEI is trying to exert political influence on the VA to more fully support the Randolph Sheppard Program.  We will have more to say about this in coming weeks but our approach is not one of confrontation but one of how do we play a role in meeting the needs of veterans?  We have been providing some technical assistant to the State of Florida which has been dealing with the VA which is building a new hospital near Orlando.  Clearly, a new hospital falls under the priority of the Act but the VA at first refused to allow a blind vendor in the new facility which will open in 2013.  However, there has been recent movement in that case and we are now optimistic that a blind vendor will in fact operate a facility at the newly constructed medical center.  This could set a precedent and we owe a debt of gratitude to the State of Florida for their perseverance in this matter.     

DOD Wants to Regulate - The Department of Defense has not given up on implementing the Joint Policy Statement that was developed with RSA in 2007.  That policy statement stated that in order for a Randolph Sheppard bid to be in the competitive range it had to be within 5% of $1 Million of the lowest bid.  The Randolph Sheppard community challenged this interpretation of competitive range and the policy was never implemented.   DOD would presumably like to include language in the DFAR that would essentially incorporate key components of the Joint Policy Statement.  The BEI has expressed its concern about such an effort to the Department of Education.  The White House did confirm that DOD and DOE were to meet to resolve the issue but that the White House would not approve anything that was detrimental to Randolph Sheppard.  Implementing the Joint Policy Statement would indeed be detrimental.  Similarly, there are some discussions taking place about possibly including some language in the FAR about Randolph Sheppard.  We are not necessarily as concerned about this effort but there are dangers.  We will continue to monitor and advocate to protect Randolph Sheppard.  

Reporting on Federal Reporting - The Presidential Memorandum issued earlier this year by the Obama Administration requires RSA to compile a report on the progress made toward greater support for the Randolph Sheppard Program.  RSA has sought input on data to be included in such a report and Terry Smith on behalf of the BEI has provided detailed input.  In reality, a report covering such a short period of time will not show great strides but the hope is that it will at least be a start.    

NCSAB Partnership Still Going Strong -  One of the strengths of the BEI is its ongoing partnership with the National Council of State Agencies for the Blind.  With Terry Smith having served as President of NCSAB and for the last 10 years served as Chair of NCSAB's Randolph Sheppard Committee, there is a solid foundation for cooperation.  Terry enjoys an excellent working relationship with Catriona Macdonald and Sean Whalen which will only strengthen the partnership with NCSAB.  Terry spoke at the NCSAB Spring meeting where he also renewed old friendships and acquaintances.  Look for some exciting things to emerge from this partnership.  

Is There Life Beyond Randolph Sheppard? - As much as we all believe in Randolph Sheppard, we must admit that the opportunities are limited and the numbers are declining.  We can blame lack of compliance with the law for a small portion of the decline but there are many other factors at play that will probably lead to a further decline in these opportunities.  That doesn't mean we don't fight for every single opportunity that is out there.  But it does mean that if we want to expand entrepreneurial opportunities for persons who are blind we must look beyond Randolph Sheppard.  The NFB recently proposed the Americans with Disabilities Business Opportunities Act which would allow businesses owned by blind persons to qualify under Section 8(a) of the Small Business Act for government contracts and subcontracts.  That strategy is being rethought.  In the coming weeks, look for a new and improved strategy on creating entrepreneurial opportunities for blind business owners.  The BEI will be integrally involved in that strategy.   

Annual BEP Meetings - The BEI wants to support annual managers' meetings in the states.  These are important upward mobility opportunities and quality training should be made available to blind entrepreneurs who attend.  The BEI is willing to make Terry Smith and others available to provide training at your annual meetings.  Whether it is simply to provide an update on national issues or provide training on a specific topic, the BEI is available to assist.    One area that may be of interest is how to effectively work with your state legislatures.  We mentioned earlier the successes in Tennessee.  Terry and others from Tennessee can be made available to train your vendors.  Terry is paid by the BEI so his time is free to you.  We may ask that you help with travel expenses if you can.  If you are interested in including the BEI in your annual meetings, contact Terry at tsmith at nfb.org.   

J Michael Jones, Ph.D

Division Administrator, Oklahoma Department of Rehabilitation Services

Phone:  405-951-3485

________________________________ 

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