H-6 ALTERNATIVE DISPUTE RESOLUTION
The Contractor and the Government
are both interested in the timely, efficient and fair resolution of all
disputes that may arise under this contract. Based upon the mutual
desire for a system of resolving disputes that meets these goals and all
applicable laws, the parties agree to use their best efforts to resolve
any disputes that may arise without litigation. If unassisted
negotiations are unsuccessful, the parties agree to use mutually
agreed-to alternative dispute resolution (ADR) techniques in an attempt
to resolve the dispute(s). In the event a party believes a particular
issue is not well-suited to ADR, or is dissatisfied with progress being
made during a particular ADR proceeding, that party may, after good
faith efforts to resolve the issue using ADR, elect to abandon that
process, and provide its reasons, in writing, to the other party.
Nothing in this agreement shall be deemed to prevent either party from
preserving and exercising its legal rights and remedies during an ADR
process or following an unsuccessful ADR proceeding.
The Contractor and the Government agree to the following dispute resolution procedure:
a. The parties agree to use their best efforts to resolve any disputes arising under this contact by unassisted negotiations.
Partnership techniques may be used to build an environment that
encourages open communication and fosters achievement of mutual goals.
Partnering may be used as a dispute avoidance mechanism assisting both
parties in identifying and solving problems before they become issues in
b. In cases where the parties
agree to use ADR ,involving the assistance of a third party neutral, the
parties will prepare and agree to a specific, written ADR agreement
appropriate to the controversy. Such agreement shall be entered into
prior to the ADR proceeding, allowing sufficient time for the parties
to reach agreement on the process, as discussed below. The agreement
should address the following, as appropriate: selection of authorized
representatives for each party; ADR techniques and processes to be
utilized and procedures to be followed; methods for the exchange of
information; a schedule and procedures for any discovery proceedings,
including how to limit discovery/factual exchange; appointment and
payment of third party neutrals (unless an administrative judge is
selected which results in no costs to either party); whether and to what
extent to stay or suspend any pending litigation; possible audit
requirements; confidentiality; at what point do the parties begin
negotiation; and a provision for termination of the agreement.
(1) Either the Contractor or the
Government may propose to the other party that ADR be utilized to
resolve any issue in controversy arising under or related to this
contract, which has not been resolved through negotiations. All such
requests shall be submitted in writing to the other involved party. The
request for review of the issue shall clearly state the specific
issue(s) in full detail.
(2) The party to whom the request
for ADR is sent shall respond in writing no later than seven (7)
business days after the request is received indicating whether or not it
agrees to the use of ADR to resolve the issues identified. If the
parties agree to the use of ADR, they shall immediately begin
negotiating in good faith on the terms of the ADR agreement, including
the identification of proposed third party neutrals. Such agreement,
including the identification of the third party neutral to be used,
shall be executed within twenty (20) calendar days after agreeing to the
use of ADR.
(3) Contractors shall provide the
certification specified in subparagraph (c) of FAR 33.207 when
submitting any claim exceeding $100,000. The certification requirement
does not apply to issues in controversy that have not been submitted as
all or part of a claim. FAR 33.207(b).
(4) If the contracting officer
rejects a Contractor’s request to use 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. 41 U.S.C. 605(e) and FAR 33.214(b). In any case where the
contractor rejects the Government’s request to use ADR proceedings, the
contractor shall inform the Government in writing of the specific
reasons for rejecting the request. The party rejecting ADR must notify
the other party no later than seven (7) business days from the date that
it received the request.
(5) The Contractor and the
Government shall agree to the submission of position papers to the third
party neutral. The position paper shall provide a comprehensive
statement of the specific alleged facts underlying the parties’
positions on the issues in dispute. The parties shall agree in advance
on a maximum page limitation for their respective position papers.
(6) When an issue is submitted
for ADR, the ADR proceeding shall be conducted at a location agreed to
by the parties. The specific process to be used during the ADR
procedure, including, but not limited to, the order of the parties’
presentations, the application of the Federal Rules of Evidence, the use
of exhibits, and the extent to which each parties’ case will be
presented using their respective counsel and/or witnesses, shall be
agreed to in advance by the parties and set forth in their written ADR
(7) The parties, and the third
party neutral, shall agree in advance on whether the neutral shall be
required, based on the parties’ presentations and the applicable law, to
issue written recommendation(s) or a written decision in the nature of
an advisory opinion.
(8) After issuance of the
recommendation(s) or advisory opinion, the Contractor and the Government
shall have a specific limited period of time to accept or reject the
recommendation(s) or advisory opinion and reach a final settlement. The
parties shall agree to this period in advance. Recommendations or
advisory opinions that have not been accepted or issues that have not
been resolved by the end of the agreed-to period shall revert to the
normal disputes process as set forth in FAR 52.233-1, unless an extended
settlement period is agreed to by both parties.
c. ADR Administration Costs.
The parties will collect and segregate the actual external costs
incurred for ADR. These direct actual costs will be apportioned as part
of the final resolution. The Contractor should include the Government’s
portion of ADR costs in CLIN 0003 (the ODC CLIN).