Electronic Guide to Federal Procurement ADR
The Boards of Contract Appeals (“Boards” or “BCAs”), the General Accounting Office (“GAO”), the FAA Office of Dispute Resolution for Acquisition and other federal dispute resolution forums regularly make available their judges and adjudication attorneys to serve as ADR neutrals. There are also individuals who have previously served as dispute forum neutrals, academics and other eminent individuals in the private sector who may be particularly well suited in terms of temperament and background in the government contracts field. It is important to verify that any proposed neutral has had adequate experience and proven skill with the particular variety of ADR you have in mind. The vast majority of ADR proceedings involving federal contract-related matters are conducted by forum neutrals.
SECTION V CONTENTS
- The Boards
- The GAO
- The FAA Office of Dispute Resolution for Acquisition
- Private Sector Neutrals
The Boards are an excellent source of impartial and cost effective neutrals with the specific knowledge and experience that is particularly suited to assisting in the resolution of government contracting controversies. For over a decade, the Boards have provided neutrals for hundreds of ADR proceedings. Success rates exceed 90% for non-binding ADRs. The Boards are committed to actively fostering the use of ADR in government contract-related matters and will make Board personnel available to participate in promising ADR proceedings in protest, pre-appeal matters, and post-appeal disputes. ADR requests are given a priority. In support of the goals of the Interagency Working Group on ADR, the Boards have committed to making neutrals available for appropriate ADR proceedings to any federal agency that requires assistance.
Three basic ADR techniques are regularly used at the Boards. The first is a binding ADR technique, often referred to as a Summary Trial with Binding Decision. Under this technique, the parties try the matter informally before an administrative judge who renders a “bench” decision at the conclusion of the hearing or shortly thereafter. By agreement, the decision is not precedential, but is final, conclusive, not appealable, and may not be set aside, except for fraud. The length of the trial and the extent to which the scheduling is expedited are tailored to the circumstances of each ADR proceeding.
The other two techniques used by the Boards are non-binding ADR procedures: the settlement judge and the minitrial. The settlement judge technique is the most commonly used non-binding ADR technique. Under this approach, the parties, with settlement authority, present their positions to each other in the presence of the neutral who will maintain the confidentiality of the proceedings and will have no further involvement in their controversy if the mediation is unsuccessful. The neutral engages the parties in a frank, in-depth discussion of the strengths and weaknesses of their positions. The neutral meets with the parties, either jointly or individually, to the extent necessary to foster a negotiated settlement. The neutral’s recommendations are not binding on the parties.
The minitrial process, as its name implies, is more trial-like in its procedural orientation and more structured than the settlement judge technique, yet it remains a highly flexible, expedited procedure. It tends to be used only in the more complex, high dollar disputes. In this technique a “panel” composed of a principal representative from each side and a neutral listen to presentations and the principals are asked to objectively “judge” what is presented to them. Each party’s principal representative is typically a senior official who is generally knowledgeable about the dispute, but who was not directly involved in events leading up to the dispute. The representatives are expected to have full settlement authority. The proceeding is aimed at informing the principal representatives and the neutral advisor of the underlying bases of the parties’ positions. Each party is given the opportunity and responsibility to present its “best case.” The presentations are made primarily through the parties’ counsel and more often than not follow a question and answer format, with some provision for cross-examination, albeit under relaxed rules of evidence. The neutral advisor presides during the ADR proceeding and participates in the negotiations between the parties. Like the settlement judge technique, the neutral advisor may meet with the parties or their counsel, jointly or individually, to the extent the neutral feels necessary to foster a negotiated settlement. The neutral advisor’s recommendations are not binding on the parties and, if the minitrial does not result in a settlement, the neutral advisor will not participate further and will maintain the confidentiality of the proceedings.
The Boards recognize that one of the strengths of the ADR process would be lost if the same procedural format were insisted on in every case. Consequently, the Boards are willing to consider other methods which are tailored to suit the requirements of a particular dispute. The Boards are available to help the parties select the appropriate ADR technique and to design the ADR process.
There are eleven federal Boards: Armed Services BCA, Corps of Engineers BCA, Department of Agriculture BCA, Department of Energy BCA, Department of Housing and Urban Development BCA, Department of the Interior BCA, Department of Labor BCA, Department of Transportation BCA, Department of Veterans Affairs BCA, General Services Administration BCA, and Postal Service BCA. Each Board has jurisdiction over contract disputes arising out of the activities of the Department that created it and certain other designated agencies. Each Board will provide ADR services to agencies for whom it bears dispute resolution responsibility.
In addition, all of the Boards, with the exception of the General Services Administration Board, participate in a BCA-ADR Sharing Arrangement. Under the sharing arrangement BCA personnel can be made available, free of charge, to conduct ADR proceedings for other agencies. The parties are encouraged to look first to obtaining ADR services from the Board that would normally handle the matter. Agency contracting officials or federal contractors who are interested in using BCA personnel from another agency should contact the Chair of the Board that would normally handle the matter. The Chairs can suggest the names of personnel from other Boards who can be made available to conduct ADR processes. Upon receiving a request for a neutral from another Board, the Chair will promptly take the necessary steps to obtain a neutral through the BCA-ADR Sharing Arrangement.
The General Services Administration Board provides ADR services to other agencies on a modest cost-reimbursement basis. For this purpose, the GSBCA will enter into a Memorandum of Understanding with the other federal agency. The agency will then obtain reimbursement from the other party for a portion of the amounts paid to the GSBCA under terms of the parties’ ADR agreement.
In recent years, the GAO has initiated a program for utilizing ADR to resolve bid protests. The two ADR methods used by GAO attorneys who act as ADR neutrals are: (1) negotiation assistance (facilitative mediation); and (2) outcome prediction (early neutral evaluation). A more detailed description of the ADR process before the GAO can be found in an article by the GAO’s Daniel I. Gordon, Esq. entitled “GAO’s Use of ‘Negotiation Assistance’ and ‘Outcome Prediction’ as ADR Techniques.”
The FAA Office of Dispute Resolution for Acquisition
The Federal Aviation Administration (“FAA”) Office of Dispute Resolution for Acquisition (“ODRA”) was created in 1996 as part of the FAA’s new Acquisition Management System (“AMS”). The AMS was developed pursuant to Section 348 of the 1996 Department of Transportation Appropriations Act, Public Law 104-50. In the Act, Congress mandated the development of an entirely new FAA system for the acquisition of goods and services, and exempted the FAA from existing acquisition laws and regulations. The FAA’s ODRA thus operates as the exclusive forum available for adjudication of bid protests and contract disputes arising under the AMS. The ODRA uses streamlined processes and procedures both for ADR and adjudication.
Although both non-binding and binding forms of ADR are available under the AMS and the ODRA’s procedural rules, the ODRA uses consensual non-binding ADR as its primary mode of dispute resolution for both bid protests and contract disputes. ADR is employed in one form or another in virtually every case before the ODRA, and, since the ODRA’s creation, nearly 60% of the controversies filed with the ODRA (54% of the protests and 88% of the contract disputes) have been successfully settled via ADR.
The ODRA makes its own Dispute Resolution Officers (DROs) available to serve as ADR neutrals, with the parties’ consent. Frequently, the ODRA conducts ADR and adjudication concurrently on two separate tracks, with two separate DROs. Once an ODRA DRO serves as an ADR neutral, he or she may not participate in a subsequent adjudication, should the matter not be settled via ADR.
In addition to its own DROs as ADR neutrals, under an interagency agreement between the FAA and the General Services Administration (“GSA”), the ODRA has made available judges from the GSA Board of Contract Appeals to serve as ODRA ADR neutrals. Alternatively, the AMS and ODRA procedures permit the parties to a controversy to agree to employ and share the costs of a compensated ADR neutral.
The ADRA of 1996 authorized agencies to enter into contracts for the services of ADR neutrals to exempt such contracts from the normal requirement for full and open competition. Special rules regarding small business set-asides for the acquisition of ADR neutral services and the justifications needed for sole source procurement of such services are enunciated in the FAR. Private sector neutrals may be engaged individually or through organizations such as the American Arbitration Association (AAA), the Center for Public Resources (CPR) and others. The General Services Administration has developed Federal Supply Schedule contract coverage for obtaining neutral services for workplace disputes. It also plans to provide schedule coverage for procurement ADR disputes by the Fall of 1999. Interested parties should check the GSA Schedule Web Site.
Table I below identifies each dispute resolution forum and provides pertinent contact information. Table II contains a listing of government departments and agencies and identifies the forums to which they may turn for ADR neutrals.
|Forum||Chair/ Principal Point of Contact||Alternate Point of Contact for ADR Inquiries||Address||Telephone||Facsimile|
|Martin J. Harty||5109 Leesburg Pike
Falls Church, VA 22041-3208
|(703) 681-8501||(703) 681-8535||ADR@asbca.mil|
|Corps of Engineers
|Edward G. Ketchen||MaryEllen D. Simpson||20 Massachusetts Avenue, NW Washington, DC 20314-1000||(202) 761-0369||(202) 761-4244|| MaryEllen.D.Simpson@
|Dept. of Agriculture
|14th & Independence Avenue, SW
Washington, DC 20250-0600
|(202) 720-7023||(202) 720-3059|
|Dept. of Energy BCA||E. Barclay Van Doren||HG-50, Building 950
Washington, DC 20585-0116
|(202) 426-9316||(202) 426-0215|
|Dept. of Housing and Urban Development BCA||David T. Anderson||Kim T.
|451 7th Street, SW
Room 2131, HUD Building
Washington, DC 20410-0001
|(202) 254-0000||(202) 254-0011||Kim_T_Rhynerson@hud.gov|
|Dept. of the
|Gene Perry Bond||Cheryl Scott Rome||4015 Wilson Boulevard, Suite 1026
Arlington, VA 22203
|(703) 235-3813||(703) 235-1281||Cheryl_Rome@FWS.gov|
|Dept. of Transpor-tation BCA||Thaddeus V. Ware||James L. Stern||400 7th Street, SW
Room 5101 (S-20)
Washington, DC 20590
|(202) 366-4305||(202) 366-1025|
Veterans Affairs BCA
|Pat Sheridan||810 Vermont Ave., NW
Washington, DC 20420
|(202) 273-6743||(202) firstname.lastname@example.org|
|General Services Administra-
|Stephen M. Daniels||1800 F Street, NW
Washington, DC 20405
|(202) 501-0585||(202) 501-0664||Stephen.email@example.com|
|Postal Service BCA||James A. Cohen||Diane Mego||2101 Wilson Boulevard, Suite 600
Arlington, VA 22201
|(703) 812-1905||(703) 812-1901|
|Anthony N. Palladino||Richard C. Walters||400 Seventh Street, S.W., Room 8332
|(202) 366-6400||(202) 366-7400||Anthony.Palladino@faa.gov|
|General Accounting Office||Anthony
|Daniel I. Gordon||Office of General Counsel
441 G Street, N.W.
Washington, D.C. 20548
|(202) 512-5207||(202) 512-9749||GamboaA.firstname.lastname@example.org|
|Federal Agency||Assigned Dispute Resolution Forum|
|Agriculture||Dept. of Agriculture BCA|
|Bureau of Prisons||Dept. of Transportation BCA|
|Coast Guard||Dept. of Transportation BCA|
|Commerce||General Services Administration BCA|
|Corp. for National & Community Service||Armed Services BCA|
|Corps of Engineers, Civil Works||Corps of Engineers BCA|
|Defense Agencies & Corps of
Engineers (Other Than Civil Works)
|Armed Services BCA|
|Education||General Services Administration BCA|
|Energy||Dept. of Energy BCA|
|Environmental Protection Agency||Dept. of the Interior BCA|
|Equal Employment Opportunity Commission||General Services Administration BCA|
|Federal Aviation Administration||FAA Office of Dispute Resolution for Acquisition|
|Federal Emergency Management Agency||Dept. of Housing and Urban Development BCA|
|Federal Energy Regulatory Commission||Dept. of Energy BCA|
|General Services Administration||General Services Administration BCA|
|Health and Human Services||Armed Services BCA|
|Interior||Dept. of the Interior BCA|
|Justice||Dept. of Transportation BCA|
|Labor||Dept. of Labor BCA|
|NASA||Armed Services BCA|
|Nuclear Regulatory Commission||Dept. of Energy BCA|
|Office of Thrift Supervision||General Services Administration BCA|
|Office of Management and Budget||Armed Services BCA|
|Securities and Exchange Commission||Dept. of Energy BCA|
|Small Business Administration||General Services Administration BCA|
|Social Security Administration||General Services Administration BCA|
|Transportation (Other than FAA)||Dept. of Transportation BCA|
|Treasury||General Services Administration BCA|
|Veterans Affairs||Dept. of Veterans Affairs BCA|