concurring and dissenting.
The issue to be decided by this court is whether the Act, as amended, authorizes an award by the arbitration panel of money damages, and the extent of those damages. When the Act is viewed against the backdrop of the eleventh amendment, it is seen that Congress only intended that the arbitration panel authorized by 20 U.S.C. § 107d-l(a) have the necessarily implied powers to grant prospective relief, and did not intend to abrogate the state’s rights under the Constitution. This conclusion is reached because, in enacting the Randolph-Sheppard Act, Congress did not make it unambiguous that the state’s participation in the blind vendors program would result in a waiver of its sovereign immunity or condition its participation on accepting all forms of monetary relief, including retroactive damages. See Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694 (1981). It is clear and unambiguous that Congress meant the arbitration panel established by the Act to have the authority to grant prospective relief in the form of an award of preferential consideration for another facility. Such authority carries with it the necessary remedial power to compensate an affected vendor for the time that elapses after an award until the vendor is actually in place.
Under § 107d-2(d), I believe that the vendor should also be reimbursed for any costs, including reasonable attorney’s fees, made necessary by the acts of the Secretary. This holding avoids the onerous effect on a state treasury of retroactive damage awards, Edelman v. Jordan, 415 U.S. 651, 665, 668, 94 S.Ct. 1347, 1357, 1358 (1974), while effectuating the remedial provisions of the Act. I would not follow the holding of the Third Circuit in Delaware Dep’t of Health & Social Servs., Div. for Visually Impaired v. United States Dep’t of Educ., 772 F.2d 1123 (3d Cir.1985), as I *688believe the legal underpinnings of that case have been fatally eroded.