THE ARMY LAWYER Headquarters, Department of the Army Department of the Army Pamphlet 27-50-371 April 2004 Articles The Applicability of the Randolph-Sheppard Act to Military Mess Halls Major Erik L. Christiansen The Boeing Suspension: Has Increased Consolidation Tied the Department of Defense’s Hands? Major Jennifer S. Zucker A Primer: Section 529 Plans, Coverdell Education Savings Accounts (Education IRAs), and Other Tax Smart Ways to Save for College Lieutenant Colonel Craig D. Bell, USAR & Maureen C. Ackerly TJAGCLS Practice Notes Labor Law Practice Note Equal Employment Opportunity Settlement Negotiations: Does the Union Have a Right to Attend? Major John N. Ohlweiler, The Judge Advocate General’s Legal Center & School Legal Assistance Practice Note The National “Do-Not-Call” Registry and Other Recent Changes to the Federal Trade Commission’s Telemarketing Sales Rule Major Carissa D. Gregg, The Judge Advocate General’s Legal Center & School Note from the Field Federal Circuit Clarifies the Total Cost Method of Proving Damages Major Robert Neill CLE News Current Materials of Interest Editor, Captain Heather J. Fagan Adjunct Editor, Lieutenant Colonel Timothy M. Tuckey Adjunct Editor, Major Carissa D. Gregg Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly tion (17th ed. 2000) and Military Citation (TJAGSA, 8th ed. 2003). Manu- by The Judge Advocate General’s Legal Center and School, Charlottesville, Vir- scripts will be returned on specific request. No compensation can be paid for ginia, for the official use of Army lawyers in the performance of their legal articles. responsibilities. 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Articles should follow The Bluebook, A Uniform System of Cita- Articles The Applicability of the Randolph-Sheppard Act to Military Mess Halls Major Erik L. Christiansen.......................................................................................................................................................... 1 The Boeing Suspension: Has Increased Consolidation Tied the Department of Defense’s Hands? Major Jennifer S. Zucker ............................................................................................................................................................ 14 A Primer: Section 529 Plans, Coverdell Education Savings Accounts (Education IRAs), and Other Tax Smart Ways to Save for Col- lege Lieutenant Colonel Craig D. Bell, USAR & Maureen C. Ackerly.............................................................................................. 28 TJAGLCS Practice Notes Labor Law Practice Note Equal Employment Opportunity Settlement Negotiations: Does the Union Have a Right to Attend? Major John N. Ohlweiler, The Judge Advocate General’s Legal Center & School.................................................................... 49 Legal Assistance Practice Note The National “Do-Not-Call” Registry and Other Recent Changes to the Federal Trade Commission’s Telemarketing Sales Rule Major Carissa D. Gregg, The Judge Advocate General’s Legal Center & School .................................................................... 56 Note from the Field Federal Circuit Clarifies the Total Cost Method of Proving Damages Major Robert Neil....................................................................................................................................................................... 62 CLE News ..................................................................................................................................................................................... 67 Current Materials of Interest ............................................................................................................................................... 79 Individual Paid Subscriptions to The Army Lawyer ...................................................................................... Inside Back Cover APRIL 2004 THE ARMY LAWYER • DA PAM 27-50-371 The Applicability of the Randolph-Sheppard Act to Military Mess Halls Major Erik L. Christiansen Student, 52d Judge Advocate Officer Graduate Course The Judge Advocate General’s Legal Center and School, U.S. Army Charlottesville, Virginia I can see clearly now the [competition’s] involves whether the RSA applies to military mess halls at all. gone. I can see all obstacles in my way.1 It discusses agency interpretations and implementation of the 1974 RSA amendments, which read “mess halls” into the Introduction RSA’s definition of “cafeteria,” and the resultant federal cases, NISH v. Cohen7 and NISH v. Rumsfeld.8 The second area of lit- The Randolph-Sheppard Act for the Blind (RSA),2 enacted igation concerns the relationship of the blind vendor priority to in 1936, provides blind vendors with a preference for certain other procurement preference programs, including the Javits federal contracts. Since 1936, Congress has amended the Act Wagner O’Day Act,9 the Historically Underutilized Business several times to strengthen consideration for blind vendors, Zone (HUBZone) Act,10 and small business set-asides, as most importantly in 1974.3 Recent decisions at the federal dis- exemplified by In re Intermark11 and Automated Communica- trict and appellate levels interpreting the RSA in light of the tions Systems, Inc. v. United States.12 The third area of litigation 1974 amendments have further expanded the Act’s reach.4 One explores the scope of the blind vendor preference. It discusses such expansion, the application of the Act to military mess hall aspects of competitive range determination, as in Oklahoma v. contracts, has sparked significant controversy, in part, because Oklahoma Department of Rehabilitative Services,13 and the dis- the blind vendor preference directly conflicts with other pro- cretion accorded a contracting officer’s determination of the curement preference programs.5 applicability of the RSA, analyzed in Washington State Depart- ment of Services for the Blind (WSDSB) v. United States.14 The This article surveys the current controversy over military article concludes with a cursory discussion of future mess hall mess halls under the RSA. It begins with a brief history of the litigation in light of these federal opinions and the National Act, to include the 1974 amendments that expanded the RSA to Defense Authorization Act for Fiscal Year 2004.15 include “cafeterias” on “federal property.”6 Next, the article addresses three areas of litigation concerning military mess hall contracts arising from the 1974 amendments. The first area 1. JOHNNY NASH, I CAN SEE CLEARLY NOW, on I CAN SEE CLEARLY NOW (Sony 1972). 2. 20 U.S.C. §§ 107-107f (2000). 3. See generally Randolph-Sheppard Act Amendments of 1974, Pub. L. No. 93-516, 88 Stat. 1622. 4. See, e.g., NISH v. Cohen, 95 F. Supp. 2d 497 (E.D. Va. 2000), aff’d, 247 F.3d 197 (4th Cir. 2001). 5. See, e.g., id. at 498 (illustrating conflict with the Javits Wagner O’Day Act). 6. Randolph-Sheppard Act Amendments of 1974, §§ 202, 207, 88 Stat. at 1623, 29. 7. 95 F. Supp. 2d 497 (E.D. Va. 2000), aff’d, 247 F.3d 197 (4th Cir. 2001). 8. 188 F. Supp. 2d 1321 (D.N.M. 2002). 9. 41 U.S.C. §§ 46-48c (2000). 10. 15 U.S.C. §§ 631-650. 11. B-290925, 2002 Comp. Gen. LEXIS 167 (Oct. 23, 2002). 12. 49 Fed. Cl. 570 (2001). 13. 1998 U.S. Dist. LEXIS 23041 (W.D. Okla. Jan. 7, 1998). 14. 2003 U.S. Claims LEXIS 381 (Fed. Cl. Dec. 17, 2003). 15. H.R. 1588, 108th Cong. (2003) (enacted). APRIL 2004 THE ARMY LAWYER • DA PAM 27-50-371 1 History of the Randolph-Sheppard Act far short of [c]ongressional intent to expand the blind vendor program.”22 Congress enacted the RSA in 1936 to “provid[e] blind per- sons with remunerative employment, enlarg[e] the economic In 1974, Congress again addressed