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FEDERAL PROCUREMENT ADR OVERVIEW

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Title: FEDERAL PROCUREMENT ADR OVERVIEW


1
FEDERAL PROCUREMENT ADR OVERVIEW
  • Presented byHonorable Candida SteelChair,
    Department of InteriorBoard of Contract Appeals
  • Mr. David Emmerson
  • Department of the Interior,
  • Office of Collaborative Action and Dispute
    Resolution
  • April 1, 2003

2
TOPICS
  • ADR Relevant Statutes and Regulations
  • Federal Interagency ADR Working Group
  • DOI Policy and Role of CADR office
  • Bid Protest ADR
  • Contract Dispute ADR
  • ADR Processes
  • DOI plans for the future your role

3
ADR Statutes and Regulations
  • Administrative Dispute Resolution Act of 1996
    (ADRA)
  • - Requires each Federal agency to
  • -Adopt a policy on the use of alternative means
    of dispute resolution (DOI policy since
    1994)
  • -Designate a senior official to be the agencys
    dispute resolution specialist, responsible for
    implementation of the Act and the agencys policy
    (Elena Gonzalez, Director of CADR, is DOIs
    Dispute Resolution Specialist)
  • -review each standard agreement for contracts,
    grants and other assistance to determine whether
    to amend such standard agreements to authorize
    and encourage the use of alternative means of
    dispute resolution

4
ADR Statutes and Regulations
  • ADRA of 1996
  • - Authorizes use of either federal (internal) or
    private (outside) compensated neutrals
  • - Specifies factors to consider for not using
    ADR
  • - Authorized use of binding arbitration based
    on agency guidance formulated with Justice
    Department input
  • - Called for President to establish an
    interagency committee to facilitate ADR use
  • - Set forth ADR confidentiality requirements for
    parties as well as for ADR neutrals

5
ADR Statutes and Regulations
  • Contract Disputes Act (CDA) (41 U.S.C. 605)
  • Expressly permits use of voluntary ADR for
    dispute resolution under the CDA
  • Requires the Government to provide written
    justification for rejecting a contractor request
    for ADR

6
ADR Statutes and Regulations
  • Federal Acquisition Regulation (FAR)
  • Section 33.204 sets forth as Government policy
    the encouragement of ADR use to the maximum
    extent practicable
  • Section 33.214 implements the ADRA as well as
    the requirement of CDA Section 605 for written
    justification for rejection of a contractor
    request for ADR

7
Interagency ADR Working Group
  • Presidents Memorandum to Agency Heads dated May
    1, 1998
  • Established the Interagency ADR Working Group
    under the Attorney General pursuant to the ADRAs
    requirement for an interagency committee
  • Authorized establishment of subgroups for
    subject areas

8
Interagency ADR Working Group
  • Presidents Memorandum to Agency Heads dated May
    1, 1998
  • Called for Interagency ADR Working Group to
    facilitate
  • development of agency ADR programs
  • ADR awareness and skills training
  • development of procedures for expedited
    procurement of ADR neutrals services
  • evaluation of ADR benefits

9
Interagency ADR Working Group
  • DOI has a member of the Interagency ADR Working
    Group Steering Committee since 1999 and the
    Secretary designated Elena Gonzalez to represent
    DOI
  • Items developed by the Interagency ADR Working
    Group Steering Committee under the auspices of
    the Federal ADR Council and posted on the Working
    Group website (http//www.adr.gov) include
  • ADR Confidentiality Guidelines
  • Core Principles for Federal Workplace ADR
  • Handbook entitled Developing Guidance for
    Binding Arbitration

10
Interagency ADR Working Group
  • 4 Sections established by Interagency ADR Working
    Group by subject matter
  • 1. Contracts and Procurement
  • 2. Workplace
  • 3. Civil Enforcement and Regulatory
  • 4. Claims Against the Government
  • -DOIs application of ADR processes is broader
    than these sections and that is recognized by the
    Interagency ADR Working Group Steering Committee
    e.g. collaborative decision-making on natural
    resource issues

11
Interagency ADR Working Group
  • Contracts and Procurement Section of Interagency
    ADR Working Group
  • Co-Sponsors Procurement ADR Seminar Series with
    the American Bar Association
  • Initiation and Coordination of the Office of
    Federal Procurement Policy (OFPP) Procurement ADR
    Awards Program
  • Development and Maintenance of the Electronic
    Guide to Federal Procurement ADR
    http//www.adr.af.mil.iadrwg

12
Interagency ADR Working Group
  • Contract and Procurements Section
  • Electronic Guide to Federal Procurement ADR
    includes sections on
  • ADR Program Design
  • Administering the ADR Process
  • ADR Training
  • ADR Neutrals
  • Agency ADR Profiles
  • List of ADR Mentors
  • Sample ADR Forms
  • Links to Federal ADR Websites

13
DOIs ADR Policy
  • DOI published a final policy on the use of ADR in
    August of 1996 it is currently being updated to
    reflect developments since 1996, such as
    establishment of CADR office and the Interior
    Dispute Resolution Council
  • DOIs policy encourages the broadest possible use
    of ADR processes, consensus-building techniques
    and negotiated rulemaking to prevent and resolve
    disputes whenever practicable and consistent with
    existing law and the missions and resources of
    the Department

14
Goal of DOIs ADR policy
  • The goal of the Departments ADR policy is to
  • improve the efficiency and effectiveness of our
    operations,
  • improve communication internally and externally,
  • and strengthen working relationships with our
    customers and constituents, industry, private
    organizations, local communities, and the other
    Federal, State, Tribal, and local government
    entities with which we interact in our work.

15
DOI Policy and CADR office
  • The Departments policy encourages use of these
    tools to manage conflicts that arise in all areas
    of the Departments work, including
  • - workplace/employment concerns
  • - programmatic issues related to bureau and
    office missions (wide range of applications, such
    as land management, water disputes, and civil
    enforcement)
  • - negotiated rulemaking and public policy
    dialogues
  • - procurement ( this will be our focus today)

16
CADR office
  • During 2001, the Acting Assistant Secretary for
    Policy, Management and Budget, requested a
    Department-wide review of ADR use since
    establishment of the DOI policy in 1994.
  • A cross-functional team was established to
    conduct an internal review across all areas of
    the Department and to benchmark 26 other Federal
    agencies.
  • A Report was issued in July of 2001, on ADR at a
    Crossroad at DOI, with findings and next step
    recommendations. The report is available at
    www.doi.gov/cadr.

17
CADR office
  • As a result of this review, the Secretary
    established the Office of Collaborative Action
    and Dispute Resolution within the Office of the
    Assistant Secretary for Policy, Management and
    Budget in October of 2001.
  • This goal of this office is to foster a culture
    and a climate where the use of collaborative
    processes and alternative means of dispute
    resolution become standard business practice
    throughout the Department, and conflicts are
    prevented or resolved at the earliest opportunity
    and the lowest possible level in all areas of the
    Departments work.

18
Objectives
  • The appropriate and effective use of ADR and
    collaborative and consensual approaches to
    planning, problem-solving and decision-making
    can
  • save time associated with conflict
  • Reduce direct and indirect cost associated with
    conflict
  • Produce more equitable and durable solutions and
    policies
  • Improve communication and strengthen
    relationships

19
CADR office
  • For more information on the work of the CADR
    office and the Interior Dispute Resolution
    Council, please visit our website at
    www.doi.gov/cadr.
  • The site is undergoing a major overhaul and we
    welcome your suggestions and input.

20
Bid Protest ADR
  • At the GAO
  • Outcome Prediction
  • Negotiation Assistance (Facilitative Mediation)
  • At the U.S. Court of Federal Claims
  • Agency Based Protest Procedures
  • Contemplated by the FAR
  • The FAA ODRA (not governed by the FAR)
  • Uses ADR as its primary means of dispute
    resolution and resolves 58 of all bid protests
    filed by means of ADR within 25 calendar days
  • Unlike GAO, the FAA ODRA itself initiates the
    idea of voluntary ADR and uses ADR neutrals who
    do not participate in the adjudication of protests

21
Contract Dispute ADR
  • At the U.S. Court of Federal Claims Pilot
    Program
  • At the IBCA
  • Types of ADR currently offered Mediation Early
    Neutral Evaluation/Settlement Judge Summary
    Trial with Binding Decision
  • Available Neutrals
  • IBCA Judges as ADR Neutrals
  • Other BCA Judges as ADR Neutrals (BCA ADR Sharing
    Arrangement)
  • Outside Compensated Neutrals (CADR office
    maintains information on qualified neutrals and
    provides guidance on how to select and procure
    the services of an outside neutral)
  • Stipulated Judgments and access to the Judgment
    Fund
  • Pre-Dispute ADR/Dispute Avoidance

22
The ADR Process
  • Deciding on ADR Use parties must jointly
    determine whether an ADR process is appropriate
    and which process will meet their needs
  • ADR Players and Roles
  • The ADR Agreement
  • Preparing for ADR
  • Deciding to Settle
  • Memorializing the Settlement Agreement

23
The ADR Process
  • Deciding on ADR Use
  • ADRA of 1996
  • DOI Policy and Guidelines
  • DOJ Guidelines

24
The ADR Process
  • ADR Players and Roles
  • Contracting Officer retains authority to
    negotiate/settle
  • Legal counsel
  • Provides advice on legality
  • Provides assessment of litigation risk
  • Helps determine whether ADR is appropriate
  • Helps present issues and facts
  • Helps prepare settlement agreements

25
The ADR Process
  • ADR Players and Roles
  • The ADR Neutral
  • Assists parties with formulation of ADR
    process/procedures
  • Counsels parties on efficient use of
    fact-finding and discovery in advance of ADR
    proceedings
  • May provide evaluation of merits if desired by
    parties including views on strengths and
    weaknesses of parties respective positions,
    should the matter be litigated
  • Focuses the parties attention on the issues
    requiring resolution and may narrow the scope of
    litigation
  • Facilitates and maintains discussion/negotiation
  • May recommend settlement scenarios with
    agreement of the parties

26
The ADR Process
  • The ADR Agreement Parties agreement to use ADR
    process
  • Written agreement highly desirable
  • Identifies ADR Neutral, his/her role, and how
    Neutral is compensated (not applicable to IBCA
    Judges)
  • Spells out process/procedures to be used
  • Sets timetable for submissions and proceedings
  • Provides for termination of ADR process
  • Provides for bounds of ADR confidentiality and
    how materials may be used if matter ultimately
    requires litigation

27
The ADR Process
  • Preparation for ADR
  • Fact-finding/discovery ADR Neutrals
    assistance in helping the parties to streamline
    the process
  • Defining issues to be resolved ADR Neutral can
    play an important role in helping the parties
  • Designation of negotiation principals with
    settlement authority critical for successful
    negotiation process
  • Prepare/submit brief position statements in
    advance of ADR proceedings crystallize the
    reasons for positions taken incorporate key
    documents

28
The ADR Process
  • Deciding to Settle
  • Risk assessment is essential roles of legal
    counsel and ADR Neutral
  • Evaluation of Costs Benefits Consider
  • Relative strengths and weaknesses of positions,
    both on specific claims and overall
  • Costs of litigation in terms of dollars, time
    and diverted resources (impact on the Agencys
    program)
  • Benefits of settlement in terms of maintaining
    cordial business relationships, particularly
    where contract is ongoing

29
The ADR Process
  • Memorializing the Settlement
  • Require a written settlement agreement
  • Have parties sign a preliminary agreement
    (Memorandum of Understanding) before leaving the
    ADR session
  • Adapt available form agreements (see Electronic
    Guide)
  • Make sure signatories have authority
  • Funding Contract Modifications and/or Use of
    Stipulated Judgments and the Judgment Fund

30
Where do we go from here?
  • The Office of Collaborative Action and Dispute
    Resolution will be working with the Interior
    Board of Contract Appeals and the Office of
    Acquisition and Property Management to design a
    flexible and effective conflict management system
    to promote the appropriate use of ADR processes
    to address conflicts that arise in the
    Departments procurement and grants work.
  • We will need your input and assistance to be
    successful. Dee Emmerich in the PAM office
    represents your interests on the Interior Dispute
    Resolution Council. Please feel free to
    communicate with her or with either of us.
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