[Federal Register Volume 59, Number 97 (Friday, May 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12225]
[[Page Unknown]]
[Federal Register: May 20, 1994]
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DEPARTMENT OF DEFENSE
Department of the Army
Alternative Disputes Resolution Procedure
AGENCY: Military Traffic Command, DOD.
ACTION: Notice.
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SUMMARY: The Military Traffic Management Command (MTMC) proposes to
increase use of alternative disputes resolution procedures to resolve
disputes in lieu of resolving disputes through litigation or
adjudication and has drafted a proposed MTMC regulation titled
Alternative Disputes Resolution (ADR) Program. The proposed MTMC
regulation 715-XX, is consistent with Public Law 101-552, the
Administrative Dispute Resolution Act (ADR Act), codified in Title 5,
U.S. 571-583. It addresses the use of alternative means of dispute
resolution with regard to the transportation and other acquisition
programs administered and managed by MTMC. A copy of this proposed
regulation may be obtained by writing a MTMC. In the meantime the
following advanced guidance contained in this Notice is provided for
your information and comment.
DATES: Comments on this guidance must be received on or before June 20,
1994.
ADDRESSES: Mail comments on this guidance or request a copy of MTMC
draft regulation 755-XX to Headquarters, Military Traffic Management
Command, ATTN: MTJA, 5611 Columbia Pike, Falls Church, VA 22041-5050.
FOR FURTHER INFORMATION CONTACT: Daniel Rothlisberger (703) 756-1580.
SUPPLEMENTARY INFORMATION: The ADR Act authorizes the use of
alternative means of dispute resolution in lieu of adjudication to
resolve issues in controversy. These means include settlement
negotiation, facilitation, mediation, fact finding, minitrials and
arbitration.
The Report of the National Performance Review, ``Creating a
Government that Works Better and Costs Less'', observes that it is
often cheaper and more timely to resolve disputes through alternative
dispute resolution and recommends that agencies ``expand their use of
alternative dispute resolution techniques.''
MTMC's use of alternative means of dispute resolution pre-dates the
ADR Act. For example, negotiation has been frequently used in resolving
potential or actual controversies arising from rules interpretation,
rate acquisition and application, qualification criteria and other
issues. It is MTMC's intention to publish and use this proposed ADR
guidance in order to promote greater use of an appropriate alternative
means of dispute resolution.
Department of the Army Headquarters, Military Traffic Management
Command, 5611 Columbia Pike, Falls Church, VA 22041-5050
MTMC Guidance 715-XX
Procurement
1. Purpose
This guidance prescribes policies and procedures applicable to the
use of alternative dispute resolution (ADR) procedures in resolving
disputes in which the Military Traffic Management Command (MTMC) is a
party.
2. Applicability
a. This guidance applies to all MTMC acquisition activities as well
as to matters that arise as a result of rulemaking, or issuing or
revoking permits. When applied to disputes arising under contracts
executed under the Federal Acquisition Regulation (FAR), this guidance
applies after the Contracting Officer has rendered or has been asked to
render a final decision on a specific issue or claim.
b. This guidance does not apply to disputes arising from personal
injury, workmen's compensation claims, contractor-subcontractor
relations, labor disputes, performance related issues normally handled
by Carrier Review Boards convened under the authority of MTMC
Regulation 15-1 or to suspension and debarment activities conducted
under FAR 9.406.
3. References
a. Contract Disputes Act, 41 U.S.C. 601-613.
b. Administrative Dispute Resolution Act, Pubic Law 101-552.
c. Alternative Means of Dispute resolution in the Administrative
Process, 5 USC Sec. 571, et seq.
d. Arbitration Statute, 9 USC, Chapter 1.
e. FAR Part 33, Protests, Disputes and Appeals, and its
supplements.
f. Civil Justice Reform, Executive Order (E.O.) 12778, October 23,
1991.
4. Definitions
a. Acquisition. Acquisition is the acquiring of supplies or
services by and for the use of the Federal Government through purchase
or lease. The term acquisition is used in this guidance specifically
includes contracting for goods and services as governed by the Federal
Acquisition Regulation (FAR) and procurement of transportation and
related services excepted by Part 47 of the FAR through the use of 49
U.S.C. section 10721 rate tenders and bills of lading; transportation
requests; transportation warrants; and similar transportation forms
customarily used by HQMTMC and its subordinate activities.
b. Alternative dispute resolution. Any procedure or combination of
procedures voluntarily used to resolve issues in controversy without
the need to resort to litigation.
c. Arbitration. Arbitration involves the use of a neutral
arbitrator(s) who decides the submitted issues after reviewing evidence
and hearing argument from the parties. The arbitrator's decision may or
may not be binding. While the arbitrator's decision in nonbinding
arbitration is only advisory, it may be highly persuasive. Binding
arbitration, on the other hand, results in a final award which
ordinarily is not subject to challenge. As used in this guidance,
``arbitration'' means non-ending arbitration.
d. Dispute. As used in this guidance, the term ``dispute'' refers
to an issue in controversy, protest or claim submitted to MTMC by an
interested party.
e. Dispute resolution panel. A MTMC ad hoc panel with authority and
applicable technical expertise to resovle disputes.
f. Facilitation. Facilitation involves the use of a facilitator who
helps the parties reach a decision or satisfactory resolution by
conducting meetings and coordinating discussions, but does not become
as invovled in the substantive issues as does a mediator. The
facilitator does not render a decision; any decision must be reached by
the parties themselves.
g. Fact-Finding. Fact-finding is the investigation of specified
issues by a neutral individual who has subject-matter expertise. Fact-
finding uses informal investigatory procedures designed to narrow
factual or technical issues in dispute. The process usually results in
a report, testimony, or advisory opinion.
h. Interested Party. The term ``interested party'' includes
carriers, contractors, or any other entity which may have a dispute
with MTMC. Federal Government employees, unions or installations are
not considered interested parties for purposes of preventing a dispute
under this guidance.
i. Mediation. Mediation involves the use of a neutral third party
to assist the parties in negotiating an agreement. The mediator has no
independent authority and does not render a decision; any decision must
be reached by the parties themselves.
j. Minitrial. A minitrial is a structured settlement process in
which each side presents an abbreviated summary of its case before
senior officials of each party authorized to settle the case. A neutral
advisor sometimes presides over the proceeding and will render an
advisory opinion if asked to do so. Following the presentations, the
officials seek to negotiate a settlement.
k. Negotiation. Negotiation is communication among people or
parties in an effort to reach an agreement.
l. Neutral. A neutral is an impartial third party or parties who
serves as mediator, facilitator, fact-finder, or arbitrator, or
otherwise assists the parties in resolving disputes.
5. Policy
It is MTMC policy to try to resolve all acquisition issues disputes
by mutual agreement and without litigation. Disputes presented for
resolution under this guidance may include a ``protest to the agency''
within the meaning of FAR 33.103 and a ``claim'' within the meaning of
the Contracts Disputes Act.
6. Responsibilities
a. Contracting officer/transportation manager. The MTMC official
responsible for the acquisition or program activity giving rise to the
dispute will be responsible for receiving such disputes filed pursuant
to this guidance and assisting in the resolution of such disputes by
procedures as deemed appropriate.
b. Office of the Staff Judge Advocate. The supporting Staff Judge
Advocate office will be responsible for providing legal support to MTMC
personnel involved in resolving disputes presented under this guidance
and assisting in the resolution of such disputes by appropriate Dispute
Resolution Panels or other selected ADR procedure. The attorneys
assigned to the Offices of the Staff Judge Advocate of MTMC area
commands will advise and assist acquisition officials and other MTMC
personnel assigned to activities within their areas of responsibility
participating in dispute resolution procedures. The legal adviser for
MTMC Eastern Area-Europe (MTEA-Europe) will coordinate directly with
the MTEA SJA Office.
The supporting office of the Staff Judge Advocate will receive and
forward disputes at the applicable address listed in paragraph 8 below.
c. Office of Public Affairs, HQMTMC and Area Commands. The Offices
of Public Affairs will assist the Dispute Resolution Panels in
publicizing every successful use of ADR procedures by any MTMC
activity.
7. Requests for Use of Ad Procedures
a. Interested parties desiring to submit their disputes for
resolution under AD procedures established by this guidance may submit
a written request referencing this guidance, to the head of the MTMC
office involved in the acquisition or activity or to the appropriate
MTMC legal office listed below:
(1) For disputes involving the activities at HQMTMC, the request
should be mailed to: Office of the Staff Judge Advocate, HQMTMC (ATTN:
MTJA), 5611 Columbia Pike, Falls Church, VA 22041-5050.
(2) For disputes involving activities of MTMC Eastern Area,
including MTEA-Europe, the request should be mailed to: Office of the
Staff Judge Advocate, MTMC Eastern Area (ATTN: MTEA-JA), Building 42,
Room 726, Bayonne, NJ 07002-5302.
(3) For disputes involving activities of MTMC Western Area,
(including MTWA-Pacific), the request should be mailed to: Office of
the Staff Judge Advocate, MTMC Western Area (ATTN: MTWA-JA), Building
1, Wing 4, Room 2403, Oakland Army Base, Oakland, CA 94626-5000.
b. Presentation of dispute. Request for use of AD procedure shall
include the interested party's name, address and telephone number,
including FAX number; the event or action involved including the
identity of the contracting or transportation office; a detailed
statement of all legal and factual grounds for the dispute, including
copies of relevant documents; a request for a ruling; and a request for
relief. All requests must be signed by an authorized representative of
the interested party.
c. Time for presenting dispute. ``Protests to the agency'' within
the meaning of FAR 33.1.3 shall be filed within the time periods set
out in FAR 33.103(b)(2). Other complaints must be filed within 30
calendar days of the action giving rise to the dispute.
d. Upon receiving a request for using AD procedures, the
responsible Contracting Officer/Transportation manager will coordinate
with the supporting Staff Judge Advocate Office to determine whether AD
is appropriate for resolution of the issues in controversy. If it is
determined that AD is not appropriate for the controversy, the
interested party will be promptly informed of the reasons for not using
AD. Reasons for not using an AD procedure include: (1) Requirement for
a definitive or authoritative resolution of the matter for precedential
value and the AD proceeding is not likely to be accepted as an
authoritative precedent.
(2) The matter involves a significant question of Government policy
that requires additional procedures before a final resolution can be
made.
(3) Maintaining established policies is of special importance and
an individual AD decision would not likely reach results consistent
with policy.
(4) The matter significantly affects persons or organizations who
are not parties to the proceeding.
(5) A full public record is important and an AD proceeding cannot
provide such a record.
(6) AD procedures would interfere with MTMC's need to maintain
jurisdiction over the matter with authority to alter the disposition of
the matter in light of changed circumstances.
e. Processing of the dispute. Within 10 working days of receipt of
the complaint, the responsible Contracting Officer/Transportation
Manager will notify the interested party of his/her choice of AD
procedure to be used in resolving the dispute. Once an AD procedure has
been agreed to by MTMC and the interested party, every effort will be
made to resolve the issue within 30 calendar days from the date of that
agreement.
f. Costs of AD procedure. Each party to the dispute will normally
be responsible for the costs they incur in using AD procedures. This
includes the cost of witness travel, affidavits, telephone calls,
copying and similar administrative costs. The parties, however, may
agree to share certain costs such as for an independent expert
evaluation having mutual benefit.
g. Statute of limitations. Use of AD procedures under this guidance
does not toll statute of limitations applicable to contract claims,
protests and requests for review. When AD procedures are used
subsequent to the issuance of a Contracting Officer's final decision,
its use does not alter any of the time limitations or procedural
requirements, See FAR 33.214(b).
h. Termination of AD procedure. MTMC or the interested party may
terminate use of the AD procedure at any time upon giving written
notice to the other party.
8. Dispute Resolution Panel
a. The Dispute Resolution Panel at HQMTMC will be composed of not
less than three members and not more than five members selected as
follows:
(1) If the dispute involves a carrier or an acquisition of
transportation services processed under the Defense Traffic Management
Regulation (DTMR) AR 55,355, or the Personal Property Traffic
Management Regulation (PPTMR), DOD Directive 4500.34-R, the Assistant
Deputy Chief of Staff for Operations (ADCSOPS), Transportation
Services, or designee at Branch Chief level or above, will serve as the
chairperson of the panel.
(2) If the dispute involves a FAR acquisition, the Principal
Assistant Responsible for Contracting, or designee at Branch Chief
level, will serve as the chairperson of the panel.
(3) If desired, the interested party may designate one member of
the panel.
(4) To the extent possible, the other member(s) of the panel will
be selected from other activities not directly involved in the dispute,
and their technical background will be related to the issues in
controversy.
b. The Dispute Resolution Panels at MTMC Eastern Area and at MTMC
Western Area will be composed of not less than three members nor more
than five members selected as follows: (1) If the dispute involves a
carrier or an acquisition of transportation services, processed under
the Defense Traffic Management Regulation (DTMR) or the Personal
Property Traffic Management Regulation (PPTMR), AR 55-355, the G-3--
Assistant Chief of Staff for Operations, or designee at Branch Chief
level or above, will serve as the chairperson of the panel.
(2) If the dispute involves a FAR acquisition, the Chief of the
Contracting Division, G4--Assistant Chief of Staff for Logistics, or
designee at Branch Chief level, will serve as the chairperson of the
panel.
(3) If desired, the interested party may designate one member of
the panel.
(4) To the extent possible, the other member(s) of the panel will
be selected by the chairperson from other activities not directly
involved in the dispute and their technical background will be related
to the issues in controversy.
9. Functions of the Dispute Resolution Panel
a. The Dispute Resolution Panel will have the authority, in
coordination with the responsible Office of the Staff Judge Advocate,
to select which dispute resolution method or procedure is best suited
for the issues in controversy and reach a decision on the merits of
those issues presented for resolution.
b. The Dispute Resolution Panel will be responsible for:
(1) Identifying the facts leading up to the issues in dispute.
(2) Meeting with representatives of the interested party as often
as it is necessary to negotiate a mutually satisfactory resolution of
the dispute.
(3) Obtaining the assistance of neutral subject matter experts when
necessary to resolve the issues in dispute. The subject matter experts
may be obtained from within MTMC, from other federal agencies, or the
private sector.
(4) Considering the use of mediators, facilitators or nonbinding
arbitration in appropriate cases when, after reasonable efforts, the
dispute has not been resolved through negotiation.
(5) When agreement is reached, drafting an administratively final
settlement agreement which will be signed by all the Panel members and
authorized representatives of the interested parties.
(6) Drafting a decision document when, after exhausting all
reasonable efforts, the dispute was not resolved through informal
dispute resolution procedures. The decision document will be signed by
all Panel members and, if necessary, will serve as a basis for
litigating the dispute. In the case of disputes under FAR contracts,
the Dispute Resolution Panel decision document will constitute an
advisory opinion and will not constitute a consideration of a final
decision if one has been rendered. In case of disputes not arising
under the FAR, the final decision document will be signed by the
appropriate Transportation Manager.
(7) Preparing a report discussing the lessons learned by the
Dispute Resolution Panel in the case, and recommending any appropriate
improvements or modifications to the process. Copies will be provided,
as appropriate, to the supporting MTMC legal office and to other
interested staff activities.
10. Notification to Interested Parties of MTMC's Policy on the Use of
Ad Procedures
All solicitations, contracts and transportation arrangements issued
or awarded by MTMC acquisition activities shall contain a notice
substantially as follows:
In furtherance of Federal policy and the Administrative Dispute
Resolution Act of 1990 (AD Act, Pub. L. 101-552, the Military Traffic
Management Command will try to resolve all acquisition issues in
controversy by mutual agreement of the parties.
Interested parties are encouraged to use alternative dispute
resolution procedures to the maximum extent practicable in accordance
with the authority and the requirements of the AD Act and MTMC Guidance
715-XX. A copy of MTMC Guidance 715-XX can be obtained by making a
request to the address listed below.
Interested parties may request the use of alternative dispute
resolution procedures by submitting a written request (referencing MTMC
Guidance 715-XX), to: (Insert the address of the responsible HQMTMC,
MTEA or MTWA acquisition activity or legal office).
For the Commander:
Kenneth L. Denton,
Army Federal Register Liaison Officer.
[FR Doc. 94-12225 Filed 5-19-94; 8:45 am]
BILLING CODE 3710-08-M
