55678 Federal Register / Vol. 62, No. 207 / Monday, October 27, 1997 / Proposed Rules

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 6, 24, 33, and 52

[FAR Case 97–015]

RIN 9000–AH72

Federal Acquisition Regulation;

Alternative Dispute Resolution—1996

AGENCIES: Department of Defense (DoD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Proposed rule.

SUMMARY: The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council are

proposing to amend the Federal

Acquisition Regulation (FAR) to

implement the Administrative Dispute

Resolution Act of 1996 (Pub. L. 104–

320) and Section 4321(a)(7) of the

Clinger-Cohen Act of 1996 (Pub. L. 104–

106). This regulatory action was not

subject to Office of Management and

Budget review under Executive Order

12866, dated September 30, 1993. This

is not a major rule under 5 U.S.C. 804.

DATES: Comments should be submitted

on or before December 26, 1997 to be

considered in the formulation of a final

rule.

ADDRESSES: Interested parties should

submit written comments to: General

Services Administration, FAR

Secretariat (MVRS), 1800 F Street, NW,

Room 4035, Washington, DC 20405.

E-mail comments submitted over

Internet should be addressed to:

farcase.97–015@gsa.gov.

Please cite FAR case 97–015 in all

correspondence related to this case.

FOR FURTHER INFORMATION CONTACT: The

FAR Secretariat, Room 4035, GS

Building, Washington, DC 20405 (202)

501–4755 for information pertaining to

status or publication schedules. For

clarification of content, contact Mr. Jack

O’Neill, Procurement Analyst, at (202)

501–3856. Please cite FAR case 97–015.

SUPPLEMENTARY INFORMATION:

A. Background

The proposed rule amends FAR Parts

6, 24, 33, and 52 to implement the

Administrative Dispute Resolution Act

of 1996 (Pub. L. 104–320) and Section

4321(a)(7) of the Clinger-Cohen Act of

1996 (Pub. L. 104–106). The rule makes

clear the authority to contract with a

neutral person as an exception to

requirements for full and open

competition, revises requirements for

certification of a claim under the

Administrative Dispute Resolution Act

to conform to the requirements under

the Contract Disputes Act, allows for

binding arbitration in certain

circumstances, and specifies that certain

dispute resolution communications are

exempt from disclosure under the

Freedom of Information Act.

B. Regulatory Flexibility Act

This proposed rule is not expected to

have a significant economic impact on

a substantial number of small entities

within the meaning of the Regulatory

Flexibility Act, 5 U.S.C. 601, et seq.,

because the rule adds guidance

pertaining to, but does not significantly

alter the procedures for, alternative

dispute resolution. Alternative dispute

resolution procedures allow voluntary

resolution of issues in controversy

without the need to resort to litigation.

An Initial Regulatory Flexibility

Analysis has, therefore, not been

performed. Comments from small

entities concerning the affected FAR

subpart will be considered in

accordance with 5 U.S.C. 610 of the Act.

Such comments must be submitted

separately and should cite 5 U.S.C. 601,

et seq. (FAR case 97–015), in

correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because the proposed changes

to the FAR do not impose recordkeeping

or information collection requirements,

or collections of information from

offerors, contractors, or members of the

public which require the approval of the

Office of Management and Budget under

44 U.S.C. 3501, et seq. However, it does

reduce the information collection

requirements relating to certification of

claims (OMB Control Number 9000–

0135).

List of Subjects in 48 CFR Parts 6, 24,

33, and 52

Government procurement.

Dated: October 21, 1997.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Therefore, it is proposed that 48 CFR

Parts 6, 24, 33, and 52 be amended as

set forth below:

1. The authority citation for 48 CFR

Parts 6, 24, 33, and 52 continues to read

as follows:

Authority: 40 U.S.C. 486(c); 10 U.S.C.

chapter 137; and 42 U.S.C. 2473(c).

PART 6—COMPETITION

REQUIREMENTS

6.302–3 [Amended]

2. Section 6.302–3 is amended in

paragraph (a)(2)(iii) by inserting ‘‘or

neutral person’’ after the word ‘‘expert’’.

PART 24—PROTECTION OF PRIVACY

AND FREEDOM OF INFORMATION:

3. Section 24.202 is amended by

adding paragraph (c) to read as follows:

24.202 Prohibitions.

* * * * *

(c) A dispute resolution

communication that is between a

neutral person and a party to alternative

dispute resolution proceedings, and that

may not be disclosed under 5 U.S.C.

574, is exempt from disclosure under

the Freedom of Information Act (5

U.S.C. 552(b)(3)).

PART 33—PROTESTS, DISPUTES,

AND APPEALS

4. Section 33.201 is amended by

revising the definition ‘‘Alternative

dispute resolution (ADR)’’ to read as

follows:

33.201 Definitions.

* * * * *

Alternative dispute resolution (ADR)

means any type of procedure or

combination of procedures voluntarily

used to resolve issues in controversy

without the need to resort to litigation.

These procedures may include, but are

not limited to, conciliation, facilitation,

mediation, fact-finding, minitrials,

arbitration, and use of ombudsmen.

* * * * *

33.204 [Amended]

5. Section 33.204 is amended in the

fifth sentence by removing ‘‘, Public

Law 100–522,’’ and inserting in its place

‘‘(5 U.S.C. 571, et seq.),’’.

6. Section 33.207 is amended by

revising paragraph (a) to read as follows:

33.207 Contractor certification.

(a) Contractors shall provide the

certification specified in 33.207(c) when

submitting any claim exceeding

$100,000.

* * * * *

7. Section 33.214 is amended in

paragraph (a)(3) by inserting ‘‘and’’ after

‘‘litigation;’’ in (a)(4) by removing ‘‘;

and’’ and inserting a period in its place;

removing (a)(5); revising the first

sentence of paragraph (b); and adding

paragraphs (f) and (g) to read as follows:

33.214 Alternative dispute resolution

(ADR).

* * * * *
Federal Register / Vol. 62, No. 207 / Monday, October 27, 1997 / Proposed Rules 55679

(b) If the contracting officer rejects a

contractor’s request for 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. * * *

* * * * *

(f)(1) A solicitation shall not require

arbitration as a condition of award,

unless arbitration is otherwise required

by law. Contracting officers should have

flexibility to select the appropriate ADR

procedure to resolve the issues in

controversy as they arise.

(2) An agreement to use arbitration

shall be in writing and shall specify a

maximum award that may be issued by

the arbitrator, as well as any other

conditions limiting the range of possible

outcomes.

(g) Binding arbitration, as an ADR

procedure, may be agreed to only as

specified in agency guidelines. Such

guidelines shall provide advice on the

appropriate use of binding arbitration

and when an agency has authority to

settle an issue in controversy through

binding arbitration.

PART 52—SOLICITATION PROVISIONS

AND CONTRACT CLAUSES

8. Section 52.233–1 is amended by

revising the date of the clause and

paragraphs (d)(2)(i) and (g) to read as

follows:

52.233–1 Disputes.

* * * * *

DISPUTES (DATE)

* * * * *

(d)(2)(i) Contractors shall provide the

certification specified in subparagraph

(d)(2)(iii) of this clause when submitting any

claim exceeding $100,000.

* * * * *

(g) If the claim by the Contractor is

submitted to the Contracting Officer or a

claim by the Government is presented to the

Contractor, the parties, by mutual consent,

may agree to use alternative dispute

resolution (ADR). If the Contractor refuses an

offer for ADR, the Contractor shall inform the

Contracting Officer, in writing, of the

Contractor’s specific reasons for rejecting the

offer.

* * * * *

[FR Doc. 97–28328 Filed 10–24–97; 8:45 am]

BILLING CODE 6820–EP–P