C.F.R. » Title 34 » CHAPTER III—OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES, DEPARTMENT OF EDUCATION › PART 395—VENDING FACILITY PROGRAM FOR THE BLIND ON FEDERAL AND OTHER PROPERTY › Subpart C—Federal Property Management

34 C.F.R. § 395.33

Operation of cafeterias by blind vendors

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(a) Priority in the operation of cafeterias by blind vendors on Federal property shall be afforded when the Secretary determines, on an individual basis, and after consultation with the appropriate property managing department, agency, or instrumentality, that such operation can be provided at a reasonable cost, with food of a high quality comparable to that currently provided employees, whether by contract or otherwise. Such operation shall be expected to provide maximum employment opportunities to blind vendors to the greatest extent possible.

(b) In order to establish the ability of blind vendors to operate a cafeteria in such a manner as to provide food service at comparable cost and of comparable high quality as that available from other providers of cafeteria services, the appropriate State licensing agency shall be invited to respond to solicitations for offers when a cafeteria contract is contemplated by the appropriate property managing department, agency, or instrumentality. Such solicitations for offers shall establish criteria under which all responses will be judged. Such criteria may include sanitation practices, personnel, staffing, menu pricing and portion sizes, menu variety, budget and accounting practices. If the proposal received from the State licensing agency is judged to be within a competitive range and has been ranked among those proposals which have a reasonable chance of being selected for final award, the property managing department, agency, or instrumentality shall consult with the Secretary as required under paragraph (a) of this section. If the State licensing agency is dissatisfied with an action taken relative to its proposal, it may file a complaint with the Secretary under the provisions of § 395.37.

(c) All contracts or other existing arrangements pertaining to the operation of cafeterias on Federal property not covered by contract with, or by permits issued to, State licensing agencies shall be renegotiated subsequent to the effective date of this part on or before the expiration of such contracts or other arrangements pursuant to the provisions of this section.

(d) Notwithstanding the requirements of paragraphs (a) and (b) of this section, Federal property managing departments, agencies, and instrumentalities may afford priority in the operation of cafeterias by blind vendors on Federal property through direct negotiations with State licensing agencies whenever such department, agency, or instrumentality determines, on an individual basis, that such operation can be provided at a reasonable cost, with food of a high quality comparable to that currently provided employees: Provided, however, That the provisions of paragraphs (a) and (b) of this section shall apply in the event that the negotiations authorized by this paragraph do not result in a contract.

Notes of Decisions
Cited in 34 cases (5 in the last 5 years), 1985–2023 · leading case: Washington State Dep't of Servs. for the Blind v. United States, 58 Fed. Cl. 781 (Fed. Cl. 2003).
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Washington State Dep't of Servs. for the Blind v. United States, 58 Fed. Cl. 781 (Fed. Cl. 2003). · cites it 22× “(citing 34 C.F.R. § 395.33 (c)), DOE should decide the legal question presented here: “whether and to what extent dining facilities services other than cooking food pertain to operating a cafeteria,” id.”
Kansas ex rel. Kansas Dep't for Child. & Families v. SourceAmerica, 874 F.3d 1226 (10th Cir. 2017). · cites it 6× “34 C.F.R. § 395.33 (c). Under the RSA, the Secretary designates a State Licensing Agency (SLA) in each state to issue licenses to qualified blind persons to operate vending facilities on federal property.”
Kentucky v. United States Ex Rel. Hangel, 759 F.3d 588 (6th Cir. 2014). · cites it 5× “See §§ 107b(2), (6); 107d-4; 107a(b); 34 C.F.R. § 395.33 . When a federal agency, such as the Army, solicits vending-facility services, it must invite the state licensing agency to bid on the contract.”
Texas ex rel. Texas Workforce Comm'n v. United States, 134 Fed. Cl. 8 (Fed. Cl. 2017). · cites it 17× “,—Operation of Vending Facilities and 34 CFR § 395.33 [ (2014) ]—Operation of Cafeterias by Blind,” which “establish priority for blind persons recognized and represented by the State Licensing Agency (SLA), in the award of contracts for the operation of cafeterias on federal…”
Randolph-Sheppard Vendors of Am. v. Caspar W. Weinberger, Nat'l Council of State Agencies for the Blind v. Caspar W. Weinberger, 795 F.2d 90 (D.C. Cir. 1986). · cites it 4× “” 34 C.F.R. § 395.33 (d). Under the regulations, “the appropriate State licensing agency shall be invited to respond to solicitations for offers when a cafeteria contract is contemplated.”
Kansas v. United States, 171 F. Supp. 3d 1145 (D. Kan. 2016). · cites it 9× “See 34 C.F.R. § 395.33 (b), (d). When the federal agency solicits bids, it must invite the State Licensing Agency to bid on the contract.”
Kentucky v. United States, 62 Fed. Cl. 445 (Fed. Cl. 2004). · cites it 6× “34 C.F.R. § 395.33 (a). In awarding the priority, therefore, the Secretary must evaluate the quality and costs of the blind vendor’s services to ensure that they are comparable to those of an incumbent vendor or other offerors.”
North Carolina Div. of Servs. for the Blind v. United States, 53 Fed. Cl. 147 (Fed. Cl. 2002). · cites it 3× “3 For the operation of cafeterias 4 , 34 C.F.R. § 395.33 applies and states, in relevant part, as follows: (a) Priority in the operation of cafeterias by blind vendors on Federal property shall be afforded when the Secretary determines, on an individual basis, and after…”
Commonwealth of Kentucky, Educ. Cabinet, Dep't for the Blind v. United States, 424 F.3d 1222 (Fed. Cir. 2005). · cites it 3× “” 34 C.F.R. § 395.33 (b). The Department of Defense has gone even further, mandating that “if the State licensing agency submits a proposal and it is within the competitive range established by the contracting officer, the contract will be awarded to the State licensing agency.”
Ga. Vocational Rehab. Agency Bus. Enter. Prog. v. United States, 354 F. Supp. 3d 690 (E.D. Va. 2018). · cites it 5× “§ 107 ; 34 C.F.R. § 395.33 (a). GA-SLA is the authorized State Licensing agency for the state of Georgia, and Mr.”
Southfork Sys., Inc. v. The United States, & State of Texas, Acting Through the Texas Comm'n for the Blind, 141 F.3d 1124 (Fed. Cir. 1998). · cites it 2× “34 C.F.R. § 395.33 . After contract award, the SLA remains involved and “shall attempt to resolve day-to-day problems pertaining to the operation of the vending facility in an informal manner with the participation of the blind vendor and the on-site official responsible for the…”
Texas Workforce Comm'n v. United States Dept o, 973 F.3d 383 (5th Cir. 2020). · cites it 3× “34 C.F.R. § 395.33 (b). Here, the Texas Workforce Commission is the SLA which sought to bid on vending facility services contracts for cafeterias at Fort Bliss, a U.”
Show all 34 citing cases →
— 34 C.F.R. § 395.33(a) — 4 cases
Kansas ex rel. Kansas Dep't for Child. & Families v. SourceAmerica, 874 F.3d 1226 (10th Cir. 2017). “34 C.F.R. § 395.33 (c). Under the RSA, the Secretary designates a State Licensing Agency (SLA) in each state to issue licenses to qualified blind persons to operate vending facilities on federal property.”
Sourceamerica v. U.S. Dep't of Educ., 368 F. Supp. 3d 974 (E.D. Va. 2019).
Washington State Dep't of Servs. for the Blind v. United States, 58 Fed. Cl. 781 (Fed. Cl. 2003). “(citing 34 C.F.R. § 395.33 (c)), DOE should decide the legal question presented here: “whether and to what extent dining facilities services other than cooking food pertain to operating a cafeteria,” id.”
Texas ex rel. Texas Workforce Comm'n v. United States, 134 Fed. Cl. 8 (Fed. Cl. 2017). “,—Operation of Vending Facilities and 34 CFR § 395.33 [ (2014) ]—Operation of Cafeterias by Blind,” which “establish priority for blind persons recognized and represented by the State Licensing Agency (SLA), in the award of contracts for the operation of cafeterias on federal…”
— 34 C.F.R. § 395.33(b) — 1 case
Texas ex rel. Texas Workforce Comm'n v. United States, 134 Fed. Cl. 8 (Fed. Cl. 2017). “,—Operation of Vending Facilities and 34 CFR § 395.33 [ (2014) ]—Operation of Cafeterias by Blind,” which “establish priority for blind persons recognized and represented by the State Licensing Agency (SLA), in the award of contracts for the operation of cafeterias on federal…”
— 34 C.F.R. § 395.33(c) — 1 case
State ex rel. the Kansas Dep't for Child. & Families v. United States ex rel. Carter, 192 F. Supp. 3d 1184 (D. Kan. 2016).
— 34 C.F.R. § 395.33(d) — 1 case
Texas ex rel. Texas Workforce Comm'n v. United States, 134 Fed. Cl. 8 (Fed. Cl. 2017). “,—Operation of Vending Facilities and 34 CFR § 395.33 [ (2014) ]—Operation of Cafeterias by Blind,” which “establish priority for blind persons recognized and represented by the State Licensing Agency (SLA), in the award of contracts for the operation of cafeterias on federal…”
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