In the Senate of the United States,

June 12, 1996.

Resolved, That the bill from the House of Representatives (H.R. 2977) entitled ‘‘An Act to reauthorize alternative

means of dispute resolution in the Federal administrative

process, and for other purposes.’’, do pass with the following

AMENDMENTS:

Strike out all after the enacting clause and insert:

1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Administrative Dispute

3 Resolution Act of 1995’’.

4 SEC. 2. AMENDMENT TO DEFINITIONS.

5 Section 571 of title 5, United States Code, is amend6 ed—

7 (1) in paragraph (3)—

8 (A) by striking out ‘‘settlement negotia9 tions,’’; and
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1 (B) by striking out ‘‘and arbitration’’ and

2 inserting in lieu thereof ‘‘use of ombuds, and

3 binding or nonbinding arbitration,’’; and

4 (2) in paragraph (8)—

5 (A) in subparagraph (B) by striking out

6 ‘‘decision,’’ and inserting in lieu thereof ‘‘deci7 sion.’’; and

8 (B) by striking out the matter following

9 subparagraph (B).

10 SEC. 3. AMENDMENTS TO CONFIDENTIALITY PROVISIONS.

11 (a) TERMINATION OF AVAILABILITY EXEMPTION TO

12 CONFIDENTIALITY.—Section 574(b) of title 5, United States

13 Code, is amended—

14 (1) in paragraph (5) by adding ‘‘or’’ at the end

15 thereof;

16 (2) in paragraph (6) by striking out ‘‘; or’’ and

17 inserting in lieu thereof a period; and

18 (3) by striking out paragraph (7).

19 (b) LIMITATION OF CONFIDENTIALITY APPLICATION TO

20 COMMUNICATION.—Section 574 of title 5, United States

21 Code, is amended—

22 (1) in subsection (a) in the matter before para23 graph (1) by striking out ‘‘any information concern24 ing’’; and
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1 (2) in subsection (b) in the matter before para2 graph (1) by striking out ‘‘any information concern3 ing’’.

4 (c) ALTERNATIVE CONFIDENTIALITY PROCEDURES.—

5 Section 574(d) of title 5, United States Code, is amended—

6 (1) by inserting ‘‘(1)’’ after ‘‘(d)’’; and

7 (2) by adding at the end thereof the following

8 new paragraph:

9 ‘‘(2) To qualify for the exemption established under

10 subsection (j), an alternative confidential procedure under

11 this subsection may not provide for less disclosure than the

12 confidential procedures otherwise provided under this sec13 tion.’’.

14 (d) EXEMPTION FROM DISCLOSURE BY STATUTE.—

15 Section 574 of title 5, United States Code, is amended by

16 striking out subsection (j) and inserting in lieu thereof the

17 following:

18 ‘‘(j) A dispute resolution communication which is gen19 erated by or provided to an agency or neutral, and which

20 may not be disclosed under this section, shall also be exempt

21 from disclosure under section 552(b)(3).’’.

22 SEC. 4. AMENDMENT TO REFLECT THE CLOSURE OF THE

23 ADMINISTRATIVE CONFERENCE.

24 (a) PROMOTION OF ADMINISTRATIVE DISPUTE RESO25 LUTIONS.—Section 3(a)(1) of the Administrative Dispute
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1 Resolution Act (5 U.S.C. 581 note; Public Law 101–552;

2 104 Stat. 2736) is amended by striking out ‘‘the Adminis3 trative Conference of the United States and’’.

4 (b) COMPILATION OF INFORMATION.—

5 (1) IN GENERAL.—Section 582 of title 5, United

6 States Code, is repealed.

7 (2) TECHNICAL AND CONFORMING AMEND8 MENT.—The table of sections for chapter 5 of title 5,

9 United States Code, is amended by striking out the

10 item relating to section 582.

11 (c) FEDERAL MEDIATION AND CONCILIATION SERV12 ICE.—Section 203(f) of the Labor Management Relations

13 Act, 1947 (29 U.S.C. 173(f)) is amended by striking out

14 ‘‘the Administrative Conference of the United States and’’.

15 SEC. 5. AMENDMENTS TO SUPPORT SERVICE PROVISION.

16 Section 583 of title 5, United States Code, is amended

17 by inserting ‘‘State, local, and tribal governments,’’ after

18 ‘‘other Federal agencies,’’.

19 SEC. 6. AMENDMENTS TO THE CONTRACT DISPUTES ACT.

20 Section 6 of the Contract Disputes Act of 1978 (41

21 U.S.C. 605) is amended—

22 (1) in subsection (d) by striking out the second

23 sentence and inserting in lieu thereof: ‘‘The contractor

24 shall certify the claim when required to do so as pro-
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1 vided under subsection (c)(1) or as otherwise required

2 by law.’’; and

3 (2) in subsection (e) by striking out the first sen4 tence.

5 SEC. 7. AMENDMENTS ON ACQUIRING NEUTRALS.

6 (a) EXPEDITED HIRING OF NEUTRALS.—

7 (1) COMPETITIVE REQUIREMENTS IN DEFENSE

8 AGENCY CONTRACTS.—Section 2304(c)(3)(C) of title

9 10, United States Code, is amended by striking out

10 ‘‘agency, or’’ and inserting in lieu thereof ‘‘agency, or

11 to procure the services of an expert or neutral for

12 use’’.

13 (2) COMPETITIVE REQUIREMENTS IN FEDERAL

14 CONTRACTS.—Section 303(c)(3)(C) of the Federal

15 Property and Administrative Services Act of 1949 (41

16 U.S.C. 253(c)(3)(C)), is amended by striking out

17 ‘‘agency, or’’ and inserting in lieu thereof ‘‘agency, or

18 to procure the services of an expert or neutral for

19 use’’.

20 (b) REFERENCES TO THE ADMINISTRATIVE CON21 FERENCE OF THE UNITED STATES.—Section 573 of title

22 5, United States Code, is amended—

23 (1) by striking out subsection (c) and inserting

24 in lieu thereof the following:
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1 ‘‘(c) In consultation with other appropriate Federal

2 agencies and professional organizations experienced in mat3 ters concerning dispute resolution, the Federal Mediation

4 and Conciliation Service shall—

5 ‘‘(1) encourage and facilitate agency use of alter6 native means of dispute resolution; and

7 ‘‘(2) develop procedures that permit agencies to

8 obtain the services of neutrals on an expedited basis.’’;

9 and

10 (2) in subsection (e) by striking out ‘‘on a roster

11 established under subsection (c)(2) or a roster main12 tained by other public or private organizations, or in13 dividual’’.

14 SEC. 8. ARBITRATION AWARDS AND JUDICIAL REVIEW.

15 (a) ARBITRATION AWARDS.—Section 580 of title 5,

16 United States Code, is amended—

17 (1) by striking out subsections (c), (f), and (g);

18 and

19 (2) by redesignating subsections (d) and (e) as

20 subsections (c) and (d), respectively.

21 (b) JUDICIAL AWARDS.—Section 581(d) of title 5,

22 United States Code, is amended—

23 (1) by striking out ‘‘(1)’’ after ‘‘(b)’’; and

24 (2) by striking out paragraph (2).
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1 SEC. 9. PERMANENT AUTHORIZATION OF THE ALTER2 NATIVE DISPUTE RESOLUTION PROVISIONS

3 OF TITLE 5, UNITED STATES CODE.

4 The Administrative Dispute Resolution Act (Public

5 Law 101–552; 104 Stat. 2747; 5 U.S.C. 581 note) is amend6 ed by striking out section 11.

7 SEC. 10. AUTHORIZATION OF APPROPRIATIONS.

8 (a) IN GENERAL.—Subchapter IV of title 5, United

9 States Code, is amended by adding at the end thereof the

10 following new section:

11 ‘‘§ 584. Authorization of appropriations

12 ‘‘There are authorized to be appropriated such sums

13 as may be necessary to carry out the purposes of this sub14 chapter.’’.

15 (b) TECHNICAL AND CONFORMING AMENDMENT.—The

16 table of sections for chapter 5 of title 5, United States Code,

17 is amended by inserting after the item relating to section

18 583 the following:

‘‘Sec. 584. Authorization of appropriations.’’.

19 SEC. 11. REAUTHORIZATION OF NEGOTIATED RULEMAKING

20 ACT OF 1990.

21 (a) PERMANENT REAUTHORIZATION.—Section 5 of the

22 Negotiated Rulemaking Act of 1990 (Public Law 101–648;

23 5 U.S.C. 561 note) is repealed.

24 (b) CLOSURE OF ADMINISTRATIVE CONFERENCE.—
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1 (1) IN GENERAL.—Section 569 of title 5, United

2 States Code, is amended—

3 (A) by amending the section heading to

4 read as follows:

5 ‘‘§ 569. Encouraging negotiated rulemaking’’; and

6 (B) by striking out subsections (a) through

7 (g) and inserting in lieu thereof the following:

8 ‘‘(a) The President shall designate an agency or des9 ignate or establish an interagency committee to facilitate

10 and encourage agency use of negotiated rulemaking. An

11 agency that is considering, planning or conducting a nego12 tiated rulemaking may consult with such agency or com13 mittee for information and assistance.

14 ‘‘(b) To carry out the purposes of this subchapter, an

15 agency planning or conducting a negotiated rulemaking

16 may accept, hold, administer, and utilize gifts, devises, and

17 bequests of property, both real and personal: Provided, That

18 agency acceptance and use of such gifts, devises or bequests

19 do not create a conflict of interest. Gifts and bequests of

20 money and proceeds from sales of other property received

21 as gifts, devises, or bequests shall be deposited in the Treas22 ury and shall be disbursed upon the order of the head of

23 such agency. Property accepted pursuant to this section,

24 and the proceeds thereof, shall be used as nearly as possible

25 in accordance with the terms of the gifts, devises, or be-
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1 quests. For purposes of Federal income, estate, or gift taxes,

2 property accepted under this section shall be considered as

3 a gift, devise, or bequest to the United States.’’.

4 (2) TECHNICAL AND CONFORMING AMEND5 MENT.—The table of sections for chapter 5 of title 5,

6 United States Code, is amended by striking out the

7 item relating to section 569 and inserting in lieu

8 thereof the following:

‘‘569. Encouraging negotiated rulemaking.’’.

9 (c) EXPEDITED HIRING OF CONVENORS AND

10 FACILITATORS.—

11 (1) DEFENSE AGENCY CONTRACTS.—Section

12 2304(c)(3)(C) of title 10, United States Code, is

13 amended by inserting ‘‘or negotiated rulemaking’’

14 after ‘‘alternative dispute resolution’’.

15 (2) FEDERAL CONTRACTS.—Section 303(c)(3)(C)

16 of the Federal Property and Administrative Services

17 Act of 1949 (41 U.S.C. 253(c)(3)(C)), is amended by

18 inserting ‘‘or negotiated rulemaking’’ after ‘‘alter19 native dispute resolution’’.

20 (d) AUTHORIZATION OF APPROPRIATIONS.—

21 (1) IN GENERAL.—Subchapter III of title 5,

22 United States Code, is amended by adding at the end

23 thereof the following new section:
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1 ‘‘§ 570a. Authorization of appropriations

2 ‘‘There are authorized to be appropriated such sums

3 as may be necessary to carry out the purposes of this sub4 chapter.’’.

5 (2) TECHNICAL AND CONFORMING AMEND6 MENT.—The table of sections for chapter 5 of title 5,

7 United States Code, is amended by inserting after the

8 item relating to section 570 the following:

‘‘Sec. 570a. Authorization of appropriations.’’.

9 (e) STUDY.—No later than 180 days after the enact10 ment of this Act, the Director of the Office of Management

11 and Budget shall complete a study with recommendations

12 on expediting the establishment of negotiated rulemaking

13 committees, including eliminating any redundant adminis14 trative requirements related to filing a committee charter

15 under section 9 of the Federal Advisory Committee Act and

16 providing public notice of such committee under section 564

17 of title 5, United States Code.

18 SEC. 12. JURISDICTION OF THE UNITED STATES COURT OF

19 FEDERAL CLAIMS: BID PROTESTS.

20 (a) BID PROTESTS.—

21 (1) TERMINATION OF JURISDICTION OF DISTRICT

22 COURTS.—Section 1491 of title 28, United States

23 Code, is amended—

24 (A) by redesignating subsection (b) as sub25 section (d);
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1 (B) in subsection (a)—

2 (i) by striking out ‘‘(a)(1)’’ and insert3 ing in lieu thereof ‘‘(a) CLAIMS AGAINST

4 THE UNITED STATES.—’’;

5 (ii) in paragraph (2), by striking out

6 ‘‘(2) To’’ and inserting in lieu thereof ‘‘(b)

7 REMEDY AND RELIEF.—To’’; and

8 (iii) by striking out paragraph (3);

9 and

10 (C) by inserting after subsection (b), as des11 ignated by paragraph (1)(B)(ii), the following

12 new subsection (c):

13 ‘‘(c) BID PROTESTS.—(1) The United States Court of

14 Federal Claims has jurisdiction to render judgment on an

15 action by an interested party objecting to a solicitation by

16 a Federal agency for bids or proposals for a proposed con17 tract or to a proposed award or the award of a contract.

18 The court has jurisdiction to entertain such an action with19 out regard to whether suit is instituted before or after the

20 contract is awarded.

21 ‘‘(2) To afford relief in such an action, the court may

22 award any relief that the court considers proper, including

23 declaratory and injunctive relief.

24 ‘‘(3) In exercising jurisdiction under this subsection,

25 the court shall give due regard to the interests of national
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1 defense and national security and the need for expeditious

2 resolution of the action.

3 ‘‘(4) The district courts of the United States do not

4 have jurisdiction of any action referred to in paragraph

5 (1).’’.

6 (2) CLERICAL AMENDMENTS.—

7 (A) SECTION HEADING.—The heading of

8 such section is amended by inserting ‘‘bid pro9 tests;’’ after ‘‘generally;’’.

10 (B) TABLE OF SECTIONS.—The table of sec11 tions at the beginning of chapter 91 of title 28,

12 United States Code, is amended by striking out

13 the item relating to section 1491 and inserting

14 in lieu thereof the following:

‘‘1491. Claims against United States generally; bid protests; actions involving

Tennessee Valley Authority.’’.

15 (b) NONEXCLUSIVITY OF GAO REMEDIES.—Section

16 3556 of title 31, United States Code, is amended by striking

17 out ‘‘a district court of the United States or the United

18 States Claims Court’’ in the first sentence and inserting

19 in lieu thereof ‘‘the United States Court of Federal Claims’’.

20 (c) SAVINGS PROVISIONS.—

21 (1) ORDERS.—The amendments made by this

22 section shall not terminate the effectiveness of orders

23 that have been issued by a court in connection with

24 an action within the jurisdiction of that court on the
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1 day before the effective date of this section. Such or2 ders shall continue in effect according to their terms

3 until modified, terminated, superseded, set aside, or

4 revoked by a court of competent jurisdiction or by op5 eration of law.

6 (2) PROCEEDINGS AND APPLICATIONS.—(A) The

7 amendments made by this section shall not affect the

8 jurisdiction of a court of the United States to con9 tinue with any proceeding that is pending before the

10 court on the day before the effective date of this sec11 tion.

12 (B) Orders may be issued in any such proceed13 ing, appeals may be taken therefrom, and payments

14 may be made pursuant to such orders, as if this sec15 tion had not been enacted. An order issued in any

16 such proceeding shall continue in effect until modi17 fied, terminated, superseded, set aside, or revoked by

18 a court of competent jurisdiction or by operation of

19 law.

20 (C) Nothing in this paragraph prohibits the dis21 continuance or modification of any such proceeding

22 under the same terms and conditions and to the same

23 extent that such proceeding could have been discon24 tinued or modified if this section had not been en25 acted.
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1 (d) EFFECTIVE DATE.—This section and the amend2 ments made by this section shall take effect on October 1,

3 1996.

Amend the title so as to read: ‘‘An Act to reauthorize alternative means of dispute resolution in the Federal

administrative process, and for other purposes.’’.

Attest:

Secretary.
104TH CONGRESS

2D SESSION H. R. 2977

AMENDMENTS
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