Introduction

Electronic Guide to Federal Procurement ADR

In broadest terms, alternative dispute resolution (“ADR”) encompasses a range of non-binding and binding techniques employed, with the assistance of third party neutrals, to resolve issues in controversy. In recent years, ADR techniques have been used successfully by agencies throughout the federal government to resolve a wide variety of contractual, labor, regulatory and other disputes. In the procurement field, many contractors and agency procurement personnel recognize that ADR can be a valuable alternative to traditional, costly and time-consuming litigation.

Many of the old barriers that inhibited the development of ADR by federal agencies have been eliminated by recent statutory, regulatory and policy initiatives. Chief among these is the Administrative Dispute Resolution Act of 1996, 5 U.S.C. § 571, et seq. (the “ADRA of 1996“, which reflects Congress’ commitment to ADR. In the procurement field, the ADRA of 1996 amended the Contract Disputes Act of 1978, 41 U.S.C. §§601-613 (“CDA“) to require that contracting officers and contractors provide a written explanation, citing one or more of the conditions contained in § 572(b) of the ADRA of 1996, whenever they decline a request for ADR. 41 U.S.C. §605(e). The Federal Acquisition Regulation (“FAR”) implements this provision. FAR §33.214(b). . Recent amendments to the FAR encourage federal agencies to “use ADR procedures to the maximum extent practicable.” See FAR §33.204 . These statutory and regulatory developments are mirrored by ADR policy statements and ADR pledges that have been adopted by several federal agencies. See ADR Program Profiles

On May 1, 1998, President Clinton, through a memorandum to the heads of executive departments and agencies, established the Interagency Alternative Dispute Resolution Working Group (“Interagency Group”). The Interagency Group is “part of an effort to make the Federal Government operate in a more efficient and effective manner, and to encourage, where possible, consensual resolution of disputes and issues and controversies involving the United States, including the prevention and avoidance of disputes….” The Memorandum directed the Interagency Group to “facilitate, encourage, and provide coordination” for agencies in such areas as:

  1. development of programs that employ alternative means of dispute resolution;
  2. training of agency personnel to recognize when and how to use alternative means of dispute resolution;
  3. development of procedures that permit agencies to obtain services of neutrals on an expedited basis; and
  4. recordkeeping to ascertain the benefits of alternative means of dispute resolution.

As part of its efforts to carry out the President’s mandate, the Interagency Group’s Contracts and Procurement Section, chaired by Air Force Brigadier General Frank Anderson, developed this Electronic Guide to Federal Procurement ADR specifically for the use of federal procurement professionals.

This Guide has been designed from the outset for electronic publication so that it can be readily accessible to virtually all federal procurement personnel on their desktop computers. The Guide will be updated periodically to keep you in touch with the latest developments. The Guide makes extensive use of electronic hyperlinks to selected ADR-related items available from a number of sources. Thus, the Guide permits you to review, print, download and integrate the most current ADR information into your contracting practices. It is your gateway to increasing the principled use of ADR in the federal sector.