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 controversy.
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
(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 agreement.
(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