Alternative Disputes Resolution Procedure

DEPARTMENT OF DEFENSE

Department of the Army

Alternative Disputes Resolution Procedure

AGENCY: Military Traffic Command, DOD.

ACTION: Notice.

-----------------------------------------------------------------------

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