[Federal Register Volume 62, Number 207 (Monday, October 27, 1997)]
[Proposed Rules]
[Pages 55678-55679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28328]
[[Page 55677]]
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Part II
Department of Defense
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General Services Administration
_______________________________________________________________________
National Aeronautics and Space Administration
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48 CFR Parts 6, 24, 33, and 52
Federal Acquisition Regulation: Alternative Dispute Resolution, 1996;
Proposed Rule
Federal Register / Vol. 62, No. 207 / Monday, October 27, 1997 /
Proposed Rules
[[Page 55678]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 6, 24, 33, and 52
[FAR Case 97-015]
RIN 9000-AH72
Federal Acquisition Regulation; Alternative Dispute Resolution--
1996
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council are proposing to amend the Federal
Acquisition Regulation (FAR) to implement the Administrative Dispute
Resolution Act of 1996 (Pub. L. 104-320) and Section 4321(a)(7) of the
Clinger-Cohen Act of 1996 (Pub. L. 104-106). This regulatory action was
not subject to Office of Management and Budget review under Executive
Order 12866, dated September 30, 1993. This is not a major rule under 5
U.S.C. 804.
DATES: Comments should be submitted on or before December 26, 1997 to
be considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (MVRS), 1800 F Street,
NW, Room 4035, Washington, DC 20405.
E-mail comments submitted over Internet should be addressed to:
farcase.97-015@gsa.gov.
Please cite FAR case 97-015 in all correspondence related to this
case.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405 (202) 501-4755 for information
pertaining to status or publication schedules. For clarification of
content, contact Mr. Jack O'Neill, Procurement Analyst, at (202) 501-
3856. Please cite FAR case 97-015.
SUPPLEMENTARY INFORMATION:
A. Background
The proposed rule amends FAR Parts 6, 24, 33, and 52 to implement
the Administrative Dispute Resolution Act of 1996 (Pub. L. 104-320) and
Section 4321(a)(7) of the Clinger-Cohen Act of 1996 (Pub. L. 104-106).
The rule makes clear the authority to contract with a neutral person as
an exception to requirements for full and open competition, revises
requirements for certification of a claim under the Administrative
Dispute Resolution Act to conform to the requirements under the
Contract Disputes Act, allows for binding arbitration in certain
circumstances, and specifies that certain dispute resolution
communications are exempt from disclosure under the Freedom of
Information Act.
B. Regulatory Flexibility Act
This proposed rule is not expected to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule
adds guidance pertaining to, but does not significantly alter the
procedures for, alternative dispute resolution. Alternative dispute
resolution procedures allow voluntary resolution of issues in
controversy without the need to resort to litigation. An Initial
Regulatory Flexibility Analysis has, therefore, not been performed.
Comments from small entities concerning the affected FAR subpart will
be considered in accordance with 5 U.S.C. 610 of the Act. Such comments
must be submitted separately and should cite 5 U.S.C. 601, et seq. (FAR
case 97-015), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose recordkeeping or information
collection requirements, or collections of information from offerors,
contractors, or members of the public which require the approval of the
Office of Management and Budget under 44 U.S.C. 3501, et seq. However,
it does reduce the information collection requirements relating to
certification of claims (OMB Control Number 9000-0135).
List of Subjects in 48 CFR Parts 6, 24, 33, and 52
Government procurement.
Dated: October 21, 1997.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, it is proposed that 48 CFR Parts 6, 24, 33, and 52 be
amended as set forth below:
1. The authority citation for 48 CFR Parts 6, 24, 33, and 52
continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 6--COMPETITION REQUIREMENTS
6.302-3 [Amended]
2. Section 6.302-3 is amended in paragraph (a)(2)(iii) by inserting
``or neutral person'' after the word ``expert''.
PART 24--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION:
3. Section 24.202 is amended by adding paragraph (c) to read as
follows:
24.202 Prohibitions.
* * * * *
(c) A dispute resolution communication that is between a neutral
person and a party to alternative dispute resolution proceedings, and
that may not be disclosed under 5 U.S.C. 574, is exempt from disclosure
under the Freedom of Information Act (5 U.S.C. 552(b)(3)).
PART 33--PROTESTS, DISPUTES, AND APPEALS
4. Section 33.201 is amended by revising the definition
``Alternative dispute resolution (ADR)'' to read as follows:
33.201 Definitions.
* * * * *
Alternative dispute resolution (ADR) means any type of procedure or
combination of procedures voluntarily used to resolve issues in
controversy without the need to resort to litigation. These procedures
may include, but are not limited to, conciliation, facilitation,
mediation, fact-finding, minitrials, arbitration, and use of ombudsmen.
* * * * *
33.204 [Amended]
5. Section 33.204 is amended in the fifth sentence by removing ``,
Public Law 100-522,'' and inserting in its place ``(5 U.S.C. 571, et
seq.),''.
6. Section 33.207 is amended by revising paragraph (a) to read as
follows:
33.207 Contractor certification.
(a) Contractors shall provide the certification specified in
33.207(c) when submitting any claim exceeding $100,000.
* * * * *
7. Section 33.214 is amended in paragraph (a)(3) by inserting
``and'' after ``litigation;'' in (a)(4) by removing ``; and'' and
inserting a period in its place; removing (a)(5); revising the first
sentence of paragraph (b); and adding paragraphs (f) and (g) to read as
follows:
33.214 Alternative dispute resolution (ADR).
* * * * *
[[Page 55679]]
(b) If the contracting officer rejects a contractor's request for
ADR proceedings, the contracting officer shall provide the contractor a
written explanation citing one or more of the conditions in 5 U.S.C.
572(b) or such other specific reasons that ADR procedures are
inappropriate for the resolution of the dispute. * * *
* * * * *
(f)(1) A solicitation shall not require arbitration as a condition
of award, unless arbitration is otherwise required by law. Contracting
officers should have flexibility to select the appropriate ADR
procedure to resolve the issues in controversy as they arise.
(2) An agreement to use arbitration shall be in writing and shall
specify a maximum award that may be issued by the arbitrator, as well
as any other conditions limiting the range of possible outcomes.
(g) Binding arbitration, as an ADR procedure, may be agreed to only
as specified in agency guidelines. Such guidelines shall provide advice
on the appropriate use of binding arbitration and when an agency has
authority to settle an issue in controversy through binding
arbitration.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
8. Section 52.233-1 is amended by revising the date of the clause
and paragraphs (d)(2)(i) and (g) to read as follows:
52.233-1 Disputes.
* * * * *
DISPUTES (DATE)
* * * * *
(d)(2)(i) Contractors shall provide the certification specified
in subparagraph (d)(2)(iii) of this clause when submitting any claim
exceeding $100,000.
* * * * *
(g) If the claim by the Contractor is submitted to the
Contracting Officer or a claim by the Government is presented to the
Contractor, the parties, by mutual consent, may agree to use
alternative dispute resolution (ADR). If the Contractor refuses an
offer for ADR, the Contractor shall inform the Contracting Officer,
in writing, of the Contractor's specific reasons for rejecting the
offer.
* * * * *
[FR Doc. 97-28328 Filed 10-24-97; 8:45 am]
BILLING CODE 6820-EP-P
