Executive Order 12979:
In October 1995, President Clinton issued Executive Order 12979 addressing agency procurement protests. See 61 Fed. Reg. 6091 (October 25, 1995). That order required agencies participating in the procurement process to resolve bid protests in an efficient manner, and to use ADR practices whenever they may be the most effective means to a resolution. The order expressed the general desire to resolve protest disputes at the agency level with the contracting officer rather than pursuing more formal means adjudication at the GAO or the Court of Federal Claims. It further required agency heads to promulgate agency-specific regulations refining the protest process.
Executive Order 12988:
In February 1996, President Clinton issued Executive Order 12988 requiring that all government litigation counsel make “reasonable attempts” to resolve a dispute before proceeding to trial. See 61 Fed. Reg. 4729, Sec. 1(c) (Feb. 7, 1996). The order required that, whenever possible, parties should use informal discussions, negotiations, and settlements rather than litigation and formal proceedings. Moreover, it suggested that litigation counsel should advocate the use of ADR, rather than discouraging counsel from utilizing ADR. ADR should be suggested if the litigation counsel feels that the use of that technique is warranted in a particular claim, and if that claim is disposed to a prompt, fair, and efficient resolution of the claim. It suggested that all government litigation counsel should be trained in ADR techniques, so that they are properly able to handle cases in ADR when they arise. Where the issues in controversy involve state, local or tribal governments, the consultation requirements of Executive Orders 13132 (Federalism) and 13175 (Consultation and Coordination With Indian Tribal Governments) supplement Executive Order 12988.