Title: FEDERAL PROCUREMENT ADR OVERVIEW
1FEDERAL 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
2TOPICS
- 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
3ADR 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
4ADR 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
5ADR 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 -
6ADR 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
7Interagency 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
8Interagency 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
9Interagency 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
10Interagency 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
11Interagency 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
12Interagency 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
13DOIs 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
14Goal 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.
15DOI 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)
16CADR 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.
17CADR 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.
18Objectives
- 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
19CADR 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.
20Bid 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
21Contract 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
22The 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
23The ADR Process
- Deciding on ADR Use
- ADRA of 1996
- DOI Policy and Guidelines
- DOJ Guidelines
24The 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
25The 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
26The 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
27The 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
28The 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
29The 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
30Where 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.