Mediations at the ODRA have similar procedures regardless of whether the matter is a protest, a contract dispute, or a pre-dispute. All mediations are facilitative, but may employ evaluative techniques if necessary or desired. All begin with an ADR agreement, and may end in a settlement agreement. All are subject to confidentiality standards, and involve neutrals who will not participate in the adjudication process if resolution is not achieved. Nevertheless, by their nature, protests create some unique features and opportunities in mediation. These features are detailed below.
Protective Order Procedures. Various statutes and regulations limit an offeror’s access to another offeror’s proposal or to the agency’s source selection information. The reasoning, of course, is that if such access were permitted, the recipient would gain a significant competitive advantage that would disrupt the benefits that agencies achieve through competition. Conversely, all protests forums (GAO, U.S. Court of Federal Claims, and ODRA) benefit from parties having access to information so they can effectively adjudciate the acquisition procedures used in the challenged procurement. Protective orders accommodate these competing needs by allowing only certain representatives and consultants access to the otherwise protected information. These individuals typically are not employees, owners, or officers of the private parties; rather, they frequently are attorneys or paid consultants who are admitted to a protective order after promising to abide by its terms. An attorney or other professional who violates a protecive order may be subject to significant sanctions and risks his or her ability to continue their professional practice.
Use of Common Core Documents. The AMS policy and the AMS guidance encourage documentation at all stages of the acquisition process. Although document titles vary, a typical post-award protest will center on key documents such as the solicitation, technical evalution reports, cost or price evaluation reports, and memorandum recording the basis for the award decision. Portions of these documents usually are provided to an unsuccessful offeror in a debriefing, but often they are heavily redacted to prevent release of information from another party’s proposal or to protect source selection information. After filing a protest and admission to a protective order, a representative of the protester may view relevant portions of these documents. Naturally, a mediation conducted under a protective order similarly will improve the parties’ ability to explore the statements in the documents as they relate to the protest.
Enhanced Debriefing Opportunity. Sometimes an ODRA ADR process takes the form of an enhanced debriefing, followed by mediation. At a routine debriefing, agency officials review the evaluation results with unsuccessful offerors so that the offerors can improve the proposals they provide in the future. Ordinary conducted without a protective order, pre-protest debriefings frequently involved redacted versions of the core documents and circumspect discussions of the evaluation. The filing of a protest and the issuance of a protective order creates the opportunity to give an enhanced debriefing to an unsuccessful offeror’s representative who is admitted under to the protective order. Both parties can benefit from this process. Freed from constrains on release of information, the agency’s evaluators can fully discuss the basis for their evaluation. Similarly, a protester benefits by having a trusted representative receive unfiltered information that can be evaluated to determine if continuing the protest or filing a supplemental protest makes business sense. The role of the mediator in an enhanced debriefing is to facilitate the communication between the agency and the protester’s representative.
Mediation Sessions. As with most familiar models of mediation, the ODRA typically uses joint sessions and caucus sessions. Recognizing that the FAA’s operations span the nation and even cross national borders, the ODRA frequently conducts its mediations telephonically or using video-teleconferencing.
Concluding the Mediation. When either or both parties conclude that resolution will not occur, they may voluntarily withdraw from the mediation process and request that the ODRA commence the adjudication process. When resolution is achieved, the parties usually execute a settlement agreement.