Ch.28 – Creative Solutions

The beauty of using an ADR proceeding is that it allows for solutions to problems that the more traditional protest and litigation processes cannot provide.   In ADR parlance, these are referred to as “creative solutions.”  As far as fashioning creative solutions, parties using ADR proceedings are only limited by their flexibility, creativeness, and ability to think “outside the box.”   Of course, any creative solution agreed to must also be legal.

The ADR proceeding provides a safe place where various unconventional solutions may be explored.  A neutral can also help serve as a sounding board for a creative solution that a party may not feel comfortable raising directly with the other party.

In protests, creative solutions are hampered by the statutory and regulatory deadlines.  However, some examples of creative solutions that have been used during ADR proceedings to resolve actual protests include:

• Small Business Set-Asides and Sole Source Authority:  Providing potential opportunities for future business to a protester, provided those opportunities do not violate law or public policy.
• Business Decisions to Withdraw a Protest:  Where a lack of understanding as to why or how an award was made an enhanced de-briefing can provide a level of understanding and transparency that may resolve a protest.  (Hyperlink to enhanced debriefing chapter)
• Subcontracting:  Allowing a protester to become a subcontractor with the awardee’s agreement.

Although post-award contract controversies generally involve a party seeking the payment of money damages, not infrequently they develop from personality conflicts that arise during contract administration.

As a general rule, the earlier parties use ADR to resolve a controversy, the greater the opportunity for employing creative solutions.  Creative solutions usually require a degree of flexibility and time to accomplish, both of which rapidly erode as litigation intensifies. Some examples of creative solutions from actual ADR processes in claims and appeals have included:

• Default Termination: Using an ADR proceeding, an agency indicated a willingness to consider stepping back from a default termination and discussed with the contractor the conditions and milestones under which the agency would allow the contractor back on the project site to complete the work.
• Past Performance Issues: Agency contracting personnel worked with the contractor, during an ADR proceeding, to craft how the contracting officer would respond when questioned about past performance issues.
• Performance Evaluations: Understanding more clearly through the ADR process why certain actions were taken, the contracting officer was willing to edit certain unfavorable records in the Contractor Performance Assessment Reports System (CPARS)
• Poor Communication:  Agency contracting officials and contractor personnel discussed how they could improve their communication in an ongoing contract, and established a protocol for addressing future controversies, instead of continuing to exacerbate a difficult relationship.
• Reputation: Believing that its firm’s reputation in the community was harmed, the contractor used an ADR proceeding to work with agency contracting officials to develop a plan to rehabilitate its reputation.
• Apology:  Where an apology was what was desired, a party apologized.
• Technical Issues:  Using an ADR proceeding, the contractor and agency agreed to work together to select and pay for a technical expert/auditor to independently analyze the technical/audit issues that were an important part of the dispute.  The parties agreed to accept the conclusions of the independent technical expert/auditor to help them move forward in resolving the issue.
• Termination for Convenience: During an ADR proceeding, the parties agreed to convert a default termination to a “no cost” termination for convenience.

Notably, most of these solutions are not available if the parties are not willing to consider using ADR and want to stick rigidly to the traditional protest or litigation procedures.  An ADR proceeding can provide a framework for parties to discuss and consider alternative solutions to a situation that may be every bit as important and satisfying as monetary damages.

Subpages (1): One Way to Achieve Creative Solutions