FEDERAL PROCUREMENT ADR OVERVIEW

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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)

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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.

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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.

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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

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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.

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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

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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

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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

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The ADR Process

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

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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

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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

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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

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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

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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

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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

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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.