27474 Federal Register / Vol. 66, No. 96 / Thursday, May 17, 2001 / Rules and Regulations

DEPARTMENT OF DEFENSE

Defense Logistics Agency

48 CFR Parts 5433 and 5452

DLA Acquisition Directive: Alternative

Dispute Resolution

AGENCY: Defense Logistics Agency

(DLA), Defense.

ACTION: Final rule.

SUMMARY: This final rule adds a new

provision to DLA solicitations

concerning the use of alternative

dispute resolution (ADR). The purpose

is to establish ADR as the initial dispute

resolution method, except for certain

circumstances, to increase cooperative

problem solving and reduce litigation.

The provision is optional for offerors;

however, if they agree to the provision,

both the contractor and DLA will be

committed to use of ADR except in

limited circumstances. Increased use of

ADR is consistent with the

Administrative Dispute Resolution Act,

the Federal Acquisition Regulation

(FAR), and Departmental policy.

EFFECTIVE DATE: May 17, 2001.

FOR FURTHER INFORMATION CONTACT: Ms.

Mary Massaro, Procurement Analyst,

Defense Logistics Agency, DLA/J–336, at

(703) 767–1366, or via email to

mary_massaro@hq.dla.mil.

SUPPLEMENTARY INFORMATION:

A. Background

DLA is pursuing several initiatives to

increase the use of ADR in resolving

contract disputes. One way to increase

use of ADR is for the parties to agree,

as part of the contract, that they will use

ADR before initiating litigation. This

type of approach is used by DoD in

partnering agreements and Agencycontractor ADR pacts.

The provision provides a vehicle for

both parties to agree to use ADR.

Offerors can opt out of the provision by

checking the box if they do not want it

in their contract in the event of award.

Offerors can also propose alternate

wording to tailor the language while

retaining the concept.

A proposed rule was published in the

Federal Register on May 16, 2000.

Sixteen commenters submitted

comments. Changes were made to the

proposed rule to clarify or simplify the

language, and to reference existing FAR

and DLA requirements. The language of

the final rule, as revised, appears below.

B. Regulatory Flexibility Act

This final rule does not 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. An

initial regulatory flexibility analysis was

not performed.

C. Paperwork Reduction Act

This rule does not impose any new

reporting or recordkeeping requirements

that require the approval of OMB under

44 U.S.C. 3501 et seq.

List of Subjects in 48 CFR Parts 5433

and 5452

Government procurement.

For the reasons set forth above, the

Defense Logistics Agency amends 48

CFR Chapter 54 as follows:

1. Part 5433 is added to read as

follows:

PART 5433—PROTESTS, DISPUTES

AND APPEALS

Authority: 10 U.S.C. Chapter 137.

5433.214. Alternative Dispute Resolution

(ADR).

The contracting officer shall insert the

provision in 5452.233 in all solicitations

unless the conditions at FAR 33.203(b)

apply.

PART 5452—SOLICITATION

PROVISIONS AND CONTRACT

CLAUSES

2. The authority citation for Part 5452

continues to read as follows:

Authority: 10 U.S.C. Chapter 137.

3. Part 5452 is amended by adding

solicitation provision 5452.233–9001 to

read as follows:

5452.233–9001 Disputes: Agreement to

Use Alternative Dispute Resolution (ADR).

As prescribed in 5433.214, insert the

following provision:

Disputes: Agreement to Use Alternative

Dispute Resolution (ADR) (Apr 2001)—

DLAD

(a) The parties agree to negotiate with each

other to try to resolve any disputes that may

arise. If unassisted negotiations are

unsuccessful, the parties will use alternative

dispute resolution (ADR) techniques to try to

resolve the dispute. Litigation will only be

considered as a last resort when ADR is

unsuccessful or has been documented by the

party rejecting ADR to be inappropriate for

resolving the dispute.

(b) Before either party determines ADR

inappropriate, that party must discuss the

use of ADR with the other party. The

documentation rejecting ADR must be signed

by an official authorized to bind the

contractor (see FAR 52.233–1), or, for the

Agency, by the contracting officer, and

approved at a level above the contracting

officer after consultation with the ADR

Specialist and with legal counsel. Contractor

personnel are also encouraged to include the

ADR Specialist in their discussions with the

contracting officer before determining ADR to

be inappropriate.

(c) If you wish to opt out of this clause,

check here [ ]. Alternate wording may be

negotiated with the contracting officer.

William J. Kenny,

Executive Director, Logistics Policy and

Acquisition Management.

[FR Doc. 01–12450 Filed 5–16–01; 8:45 am]

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