Sometimes the best way to win a fight is to avoid it.
When issues in controversy arise, the ASBCA, CBCA, and ODRA all offer assistance before the formal filing of an action. The CBCA calls their process an “early assessment;” the ASBCA refers to “off-docket matters,” and the ODRA uses the term “pre-disputes.” The Army Corps of Engineers (ACE), Baltimore District, has a policy where ACE personnel will meet with a contractor, prior to issuing the contracting officer’s final decision, to let the contractor provide additional information. The contracting officer will give a preliminary read on his or her position, but is still open to receiving additional information from the contractor. This is done to ensure that the ACE contracting officer has all relevant facts and a solid understanding of the issues prior to issuing his or her final decision.
In government contracting, avoiding a protest or claim also can be achieved through some up-front planning in the early stages of the acquisition. The following chapters introduce several ADR techniques that contracting officers should consider when drafting their next solicitation.
- Perhaps enhancing your debriefing process will avoid a protest. See Ch.8, Improved Debriefings.
- Perhaps a standing set of neutrals will offer a quick and streamlined first-read on a matter. See Ch.07, DR Boards.
- Maybe improving the communication process between the parties will help on a big job. See Ch.6, Partnering.
- Finally, a preliminary commitment to use ADR could help ease the pain if a dispute is unavoidable. See Ch.5, ADR Clauses.