The Contract Disputes Act of 1978 (P.L. 95-563) states that boards
of contract appeals "shall provide to the fullest extent practicable,
informal, expeditious, and inexpensive resolution of disputes."
Moreover, the Alternative Disputes Resolution Act (P.L. 101-552)
specifically "authorize[s] and encourage[s] Federal agencies to
use mediation, conciliation, arbitration, and other techniques for
the prompt and informal resolution of disputes, ...." Resolution
of a dispute at the earliest stage feasible, by the fastest and
least expensive method possible, benefits both parties.
The Alternative Disputes Resolution (ADR) procedures described
in this Notice are intended to suggest techniques which have worked
in the past. Any method which brings the parties together in settlement,
or partial settlement, of their dispute is a good method. The ADR
methods listed are not intended to preclude the parties' use of
other ADR techniques which do not require the Board's participation,
such as settlement negotiations, fact-finding conferences or procedures,
mediation, or minitrials not involving use of the Board's personnel.
The ADR methods described below are designed to supplement existing
"extrajudicial" settlement techniques, not to replace them. Any
method, or combination of methods, including one which will result
in a binding decision, may be selected by the parties without regard
to the dollar amount in dispute.
Requests to the Board to utilize ADR procedures must be made jointly
by the parties. If an ADR method involving the Board's participation
is requested by the parties, the presiding administrative judge
will forward the request to the Board's Chairman for consideration.
Unilateral requests or motions seeking ADR will not be considered.
The presiding administrative judge may also be asked to schedule
a conference to explore the desirability and selection of an ADR
method. If a non-binding ADR method involving the Board's participation
is requested and approved by the Chairman, a settlement judge or
a neutral advisor will be appointed. The person appointed may be
another administrative judge of the Board or an administrative judge
of another Federal agency board of contract appeals.
If a non-binding ADR method fails to resolve the dispute, the appeal
will be restored to the active docket for processing under the Board's
Rules. To facilitate full, frank and open discussion and presentations,
any settlement judge or neutral advisor who had participated in
a non-binding ADR procedures which has failed to resolve the underlying
dispute will ordinarily not participate in the restored appeal.
Further, the judge or advisor will not discuss the merits of the
appeal or substantive matters involved in the ADR proceedings with
other Board personnel. Unless the parties explicitly request to
the contrary, and such request is approved by the Chairman, the
assigned ADR settlement judge or neutral advisor will be recused
from consideration of the restore appeal.
Written material prepared specifically for use in an ADR proceeding,
oral presentations made at an ADR proceeding, and all discussions
in connection with such proceedings between representatives of the
parties and a settlement judge or a neutral advisor are confidential
and, unless otherwise specifically agreed by the parties, inadmissible
as evidence in any pending or future Board proceeding involving
the parties or matter in dispute. However, evidence otherwise admissible
before the Board is not rendered inadmissible because of its use
in an ADR proceeding.
Guidelines, procedures, and requirements implementing the ADR method
selected will be prescribed by agreement of the parties and the
settlement judge or neutral advisor. ADR methods can be used successfully
at any stage of the litigation. Adoption of an ADR method as early
in the appeal process as feasible will eliminate substantial cost
and delay. Generally, ADR proceedings will be conducted within 120
days following approval of their use by the Chairman.
The following ADR methods are consensual and voluntary. Both parties
and the Board must agree to use of any of these methods. The summary
trial method requires that the parties agree to be bound by the
- Settlement Judge: A "settlement judge" is an administrative
judge who will not hear or have any formal or informal decision-making
authority in the appeal and who is appointed for the purposes
of facilitating settlement. In many circumstances, settlement
can be fostered by a frank, in-depth discussion of the strengths
and weaknesses or each party's position with a settlement judge.
The agenda for meeting with the settlement judge will be flexible
to accommodate the requirements of the individual appeal. To further
the settlement effort, the settlement judge may meet with the
parties either jointly or individually. Settlement judges' recommendations
are not binding on the parties.
- Minitrial: The minitrial is a highly flexible, expedited,
but structured, procedure where each party presents an abbreviated
version of its position to principals of the parties who have
full contractual authority to conclude a settlement and to a Board-appointed
neutral advisor. The parties determine the form of presentation
without regard to customary judicial proceedings and rules of
evidence. Principals and the neutral advisor participate during
the presentation of evidence as provided in their advance agreement
on procedure. Upon conclusion of these presentations, settlement
negotiations are conducted. The neutral advisor may assist the
parties in negotiating a settlement. The procedures for each minitrial
will be designed to meet the needs of the individual appeal. Neutral
advisors' recommendations are not binding on the parties.
- Summary Trial with Binding Decision: A summary trial
with binding decision is a procedure whereby the scheduling of
the appeal is expedited and the parties try their appeal informally
before an administrative judge or panel of judges. A summary "bench"
decision generally will be issued upon conclusion of the trial
or a summary written decision will be issued no later than ten
days following the later of conclusion of the trial or receipt
of a trial transcript. The parties must agree that all decisions,
rulings, and orders by the Board under this method shall be final,
conclusive, not appealable, and may not be set aside, except for
fraud. All such decisions, rulings, and orders will have no precedential
value. The length of trial and the extent to which scheduling
of the appeal is expedited will be tailored to the needs of each
particular appeal. Pretrial, trial, and post-trial procedures
and rules applicable to appeals generally will be modified or
eliminated to expedite resolution of the appeal.
- Other Agreed Methods: The parties and the Board may agree
upon other informal methods which are structured and tailored
to suit the requirements of the individual appeal.
The above ADR procedures are intended to shorten and simplify
the Board's more formalized procedures. Generally, if the parties
resolve their dispute by agreement, they benefit in terms of cost
and time savings and maintenance or restoration of amicable relations.
The Board will not view the parties' participation in ADR proceedings
as a sign of weakness. Any method adopted for dispute resolution
depends upon both parties having a firm, good faith commitment
to resolve their differences. Absent such intention, the best
structured dispute resolution procedure is likely to be unsuccessful.