[Federal Register Volume 66, Number 96 (Thursday, May 17, 2001)]
[Rules and Regulations]
[Page 27474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12450]
[[Page 27474]]
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DEPARTMENT OF DEFENSE
Defense Logistics Agency
48 CFR Parts 5433 and 5452
DLA Acquisition Directive: Alternative Dispute Resolution
AGENCY: Defense Logistics Agency (DLA), Defense.
ACTION: Final rule.
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SUMMARY: This final rule adds a new provision to DLA solicitations
concerning the use of alternative dispute resolution (ADR). The purpose
is to establish ADR as the initial dispute resolution method, except
for certain circumstances, to increase cooperative problem solving and
reduce litigation. The provision is optional for offerors; however, if
they agree to the provision, both the contractor and DLA will be
committed to use of ADR except in limited circumstances. Increased use
of ADR is consistent with the Administrative Dispute Resolution Act,
the Federal Acquisition Regulation (FAR), and Departmental policy.
EFFECTIVE DATE: May 17, 2001.
FOR FURTHER INFORMATION CONTACT: Ms. Mary Massaro, Procurement Analyst,
Defense Logistics Agency, DLA/J-336, at (703) 767-1366, or via email to
[email protected].
SUPPLEMENTARY INFORMATION:
A. Background
DLA is pursuing several initiatives to increase the use of ADR in
resolving contract disputes. One way to increase use of ADR is for the
parties to agree, as part of the contract, that they will use ADR
before initiating litigation. This type of approach is used by DoD in
partnering agreements and Agency-contractor ADR pacts.
The provision provides a vehicle for both parties to agree to use
ADR. Offerors can opt out of the provision by checking the box if they
do not want it in their contract in the event of award. Offerors can
also propose alternate wording to tailor the language while retaining
the concept.
A proposed rule was published in the Federal Register on May 16,
2000. Sixteen commenters submitted comments. Changes were made to the
proposed rule to clarify or simplify the language, and to reference
existing FAR and DLA requirements. The language of the final rule, as
revised, appears below.
B. Regulatory Flexibility Act
This final rule does not 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. An initial regulatory
flexibility analysis was not performed.
C. Paperwork Reduction Act
This rule does not impose any new reporting or recordkeeping
requirements that require the approval of OMB under 44 U.S.C. 3501 et
seq.
List of Subjects in 48 CFR Parts 5433 and 5452
Government procurement.
For the reasons set forth above, the Defense Logistics Agency
amends 48 CFR Chapter 54 as follows:
1. Part 5433 is added to read as follows:
PART 5433--PROTESTS, DISPUTES AND APPEALS
Authority: 10 U.S.C. Chapter 137.
5433.214. Alternative Dispute Resolution (ADR).
The contracting officer shall insert the provision in 5452.233 in
all solicitations unless the conditions at FAR 33.203(b) apply.
PART 5452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
2. The authority citation for Part 5452 continues to read as
follows:
Authority: 10 U.S.C. Chapter 137.
3. Part 5452 is amended by adding solicitation provision 5452.233-
9001 to read as follows:
5452.233-9001 Disputes: Agreement to Use Alternative Dispute
Resolution (ADR).
As prescribed in 5433.214, insert the following provision:
Disputes: Agreement to Use Alternative Dispute Resolution (ADR) (Apr
2001)--DLAD
(a) The parties agree to negotiate with each other to try to
resolve any disputes that may arise. If unassisted negotiations are
unsuccessful, the parties will use alternative dispute resolution
(ADR) techniques to try to resolve the dispute. Litigation will only
be considered as a last resort when ADR is unsuccessful or has been
documented by the party rejecting ADR to be inappropriate for
resolving the dispute.
(b) Before either party determines ADR inappropriate, that party
must discuss the use of ADR with the other party. The documentation
rejecting ADR must be signed by an official authorized to bind the
contractor (see FAR 52.233-1), or, for the Agency, by the
contracting officer, and approved at a level above the contracting
officer after consultation with the ADR Specialist and with legal
counsel. Contractor personnel are also encouraged to include the ADR
Specialist in their discussions with the contracting officer before
determining ADR to be inappropriate.
(c) If you wish to opt out of this clause, check here [ ].
Alternate wording may be negotiated with the contracting officer.
William J. Kenny,
Executive Director, Logistics Policy and Acquisition Management.
[FR Doc. 01-12450 Filed 5-16-01; 8:45 am]
BILLING CODE 3620-01-M