H. R. 4194

One Hundred Fourth Congress

of the

United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Wednesday,

the third day of January, one thousand nine hundred and ninety-six

An Act

To reauthorize alternative means of dispute resolution in the Federal administrative

process, and for other purposes.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Administrative Dispute

Resolution Act of 1996’’.

SEC. 2. AMENDMENT TO DEFINITIONS.

Section 571 of title 5, United States Code, is amended—

(1) in paragraph (3)—

(A) by striking ‘‘, in lieu of an adjudication as defined

in section 551(7) of this title,’’;

(B) by striking ‘‘settlement negotiations,’’; and

(C) by striking ‘‘and arbitration’’ and inserting ‘‘arbitration, and use of ombuds’’; and

(2) in paragraph (8)—

(A) in subparagraph (B) by striking ‘‘decision,’’ and

inserting ‘‘decision;’’; and

(B) by striking the matter following subparagraph (B).

SEC. 3. AMENDMENTS TO CONFIDENTIALITY PROVISIONS.

(a) LIMITATION OF CONFIDENTIALITY APPLICATION TO

COMMUNICATION.—Subsections (a) and (b) of section 574 of title

5, United States Code, are each amended in the matter before

paragraph (1) by striking ‘‘any information concerning’’.

(b) DISPUTE RESOLUTION COMMUNICATION.—Section 574(b)(7)

of title 5, United States Code, is amended to read as follows:

‘‘(7) except for dispute resolution communications generated

by the neutral, the dispute resolution communication was provided to or was available to all parties to the dispute resolution

proceeding.’’.

(c) ALTERNATIVE CONFIDENTIALITY PROCEDURES.—Section

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

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

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

paragraph:

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

(j), an alternative confidential procedure under this subsection may

not provide for less disclosure than the confidential procedures

otherwise provided under this section.’’.
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(d) EXEMPTION FROM DISCLOSURE BY STATUTE.—Section 574

of title 5, United States Code, is amended by amending subsection

(j) to read as follows:

‘‘(j) A dispute resolution communication which is between a

neutral and a party and which may not be disclosed under this

section shall also be exempt from disclosure under section

552(b)(3).’’.

SEC. 4. AMENDMENT TO REFLECT THE CLOSURE OF THE

ADMINISTRATIVE CONFERENCE.

(a) PROMOTION OF ADMINISTRATIVE DISPUTE RESOLUTIONS.—

Section 3(a)(1) of the Administrative Dispute Resolution Act (5

U.S.C. 571 note; Public Law 101–552; 104 Stat. 2736) is amended

to read as follows:

‘‘(1) consult with the agency designated by, or the interagency committee designated or established by, the President

under section 573 of title 5, United States Code, to facilitate

and encourage agency use of alternative dispute resolution

under subchapter IV of chapter 5 of such title; and’’.

(b) COMPILATION OF INFORMATION.—

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

is repealed.

(2) TECHNICAL AND CONFORMING AMENDMENT.—The table

of sections for chapter 5 of title 5, United States Code, is

amended by striking the item relating to section 582.

(c) FEDERAL MEDIATION AND CONCILIATION SERVICE.—Section

203(f) of the Labor Management Relations Act, 1947 (29 U.S.C.

173(f)) is amended by striking ‘‘the Administrative Conference of

the United States and other agencies’’ and inserting ‘‘the agency

designated by, or the interagency committee designated or established by, the President under section 573 of title 5, United States

Code,’’.

SEC. 5. AMENDMENTS TO SUPPORT SERVICES PROVISION.

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

inserting ‘‘State, local, and tribal governments,’’ after ‘‘other Federal

agencies,’’.

SEC. 6. AMENDMENTS TO THE CONTRACT DISPUTES ACT.

Section 6 of the Contract Disputes Act of 1978 (41 U.S.C.

605) is amended—

(1) in subsection (d) by striking the second sentence and

inserting: ‘‘The contractor shall certify the claim when required

to do so as provided under subsection (c)(1) or as otherwise

required by law.’’; and

(2) in subsection (e) by striking the first sentence.

SEC. 7. AMENDMENTS ON ACQUIRING NEUTRALS.

(a) EXPEDITED HIRING OF NEUTRALS.—

(1) COMPETITIVE REQUIREMENTS IN DEFENSE AGENCY

CONTRACTS.—Section 2304(c)(3)(C) of title 10, United States

Code, is amended by striking ‘‘agency, or’’ and inserting ‘‘agency,

or to procure the services of an expert or neutral for use’’.

(2) COMPETITIVE REQUIREMENTS IN FEDERAL CONTRACTS.—

Section 303(c)(3)(C) of the Federal Property and Administrative

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

striking ‘‘agency, or’’ and inserting ‘‘agency, or to procure the

services of an expert or neutral for use’’.
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(b) REFERENCES TO THE ADMINISTRATIVE CONFERENCE OF THE

UNITED STATES.—Section 573 of title 5, United States Code, is

amended—

(1) by striking subsection (c) and inserting the following:

‘‘(c) The President shall designate an agency or designate or

establish an interagency committee to facilitate and encourage

agency use of dispute resolution under this subchapter. Such agency

or interagency committee, in consultation with other appropriate

Federal agencies and professional organizations experienced in

matters concerning dispute resolution, shall—

‘‘(1) encourage and facilitate agency use of alternative

means of dispute resolution; and

‘‘(2) develop procedures that permit agencies to obtain the

services of neutrals on an expedited basis.’’; and

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

under subsection (c)(2) or a roster maintained by other public

or private organizations, or individual’’.

SEC. 8. ARBITRATION AWARDS AND JUDICIAL REVIEW.

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

Code, is amended—

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

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

(c) and (d), respectively.

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

Code, is amended—

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

(2) by striking paragraph (2).

(c) AUTHORIZATION OF ARBITRATION.—Section 575 of title 5,

United States Code, is amended—

(1) in subsection (a)(2), by striking ‘‘Any’’ and inserting

‘‘The’’;

(2) in subsection (a)(2), by adding at the end the following:

‘‘Each such arbitration agreement shall specify a maximum

award that may be issued by the arbitrator and may specify

other conditions limiting the range of possible outcomes.’’;

(3) in subsection (b)—

(A) by striking ‘‘may offer to use arbitration for the

resolution of issues in controversy, if’’ and inserting ‘‘shall

not offer to use arbitration for the resolution of issues

in controversy unless’’; and

(B) by striking in paragraph (1) ‘‘has authority’’ and

inserting ‘‘would otherwise have authority’’; and

(4) by adding at the end the following:

‘‘(c) Prior to using binding arbitration under this subchapter,

the head of an agency, in consultation with the Attorney General

and after taking into account the factors in section 572(b), shall

issue guidance on the appropriate use of binding arbitration and

when an officer or employee of the agency has authority to settle

an issue in controversy through binding arbitration.’’.

SEC. 9. PERMANENT AUTHORIZATION OF THE ALTERNATIVE DISPUTE

RESOLUTION PROVISIONS OF TITLE 5, UNITED STATES

CODE.

The Administrative Dispute Resolution Act (Public Law 101–

552; 104 Stat. 2747; 5 U.S.C. 571 note) is amended by striking

section 11.
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SEC. 10. AUTHORIZATION OF APPROPRIATIONS.

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

is amended by adding at the end thereof the following new section:

‘‘§ 584. Authorization of appropriations

‘‘There are authorized to be appropriated such sums as may

be necessary to carry out the purposes of this subchapter.’’.

(b) TECHNICAL AND CONFORMING AMENDMENT.—The table of

sections for chapter 5 of title 5, United States Code, is amended

by inserting after the item relating to section 583 the following:

‘‘584. Authorization of appropriations.’’.

SEC. 11. REAUTHORIZATION OF NEGOTIATED RULEMAKING ACT OF

1990.

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

Rulemaking Act of 1990 (Public Law 101–648; 5 U.S.C. 561 note)

is repealed.

(b) CLOSURE OF ADMINISTRATIVE CONFERENCE.—

(1) IN GENERAL.—Section 569 of title 5, United States Code,

is amended—

(A) by amending the section heading to read as follows:

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

(B) by striking subsections (a) through (g) and inserting

the following:

‘‘(a) The President shall designate an agency or designate or

establish an interagency committee to facilitate and encourage

agency use of negotiated rulemaking. An agency that is considering,

planning, or conducting a negotiated rulemaking may consult with

such agency or committee for information and assistance.

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

planning or conducting a negotiated rulemaking may accept, hold,

administer, and utilize gifts, devises, and bequests of property,

both real and personal if that agency’s acceptance and use of such

gifts, devises, or bequests do not create a conflict of interest. Gifts

and bequests of money and proceeds from sales of other property

received as gifts, devises, or bequests shall be deposited in the

Treasury and shall be disbursed upon the order of the head of

such agency. Property accepted pursuant to this section, and the

proceeds thereof, shall be used as nearly as possible in accordance

with the terms of the gifts, devises, or bequests.’’.

(2) TECHNICAL AND CONFORMING AMENDMENT.—The table

of sections for chapter 5 of title 5, United States Code, is

amended by striking the item relating to section 569 and inserting the following:

‘‘569. Encouraging negotiated rulemaking.’’.

(c) EXPEDITED HIRING OF CONVENORS AND FACILITATORS.—

(1) DEFENSE AGENCY CONTRACTS.—Section 2304(c)(3)(C) of

title 10, United States Code, is amended by inserting ‘‘or negotiated rulemaking’’ after ‘‘alternative dispute resolution’’.

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

Federal Property and Administrative Services Act of 1949 (41

U.S.C. 253(c)(3)(C)), is amended by inserting ‘‘or negotiated

rulemaking’’ after ‘‘alternative dispute resolution’’.

(d) AUTHORIZATION OF APPROPRIATIONS.—
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(1) IN GENERAL.—Subchapter III of title 5, United States

Code, is amended by adding at the end thereof the following

new section:

‘‘§ 570a. Authorization of appropriations

‘‘There are authorized to be appropriated such sums as may

be necessary to carry out the purposes of this subchapter.’’.

(2) TECHNICAL AND CONFORMING AMENDMENT.—The table

of sections for chapter 5 of title 5, United States Code, is

amended by inserting after the item relating to section 570

the following:

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

(e) NEGOTIATED RULEMAKING COMMITTEES.—The Director of

the Office of Management and Budget shall—

(1) within 180 days of the date of the enactment of this

Act, take appropriate action to expedite the establishment of

negotiated rulemaking committees and committees established

to resolve disputes under the Administrative Dispute Resolution

Act, including, with respect to negotiated rulemaking committees, eliminating any redundant administrative requirements

related to filing a committee charter under section 9 of the

Federal Advisory Committee Act (5 U.S.C. App.) and providing

public notice of such committee under section 564 of title 5,

United States Code; and

(2) within one year of the date of the enactment of this

Act, submit recommendations to Congress for any necessary

legislative changes.

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

CLAIMS AND THE DISTRICT COURTS OF THE UNITED

STATES: BID PROTESTS.

(a) BID PROTESTS.—Section 1491 of title 28, United States

Code, is amended—

(1) by redesignating subsection (b) as subsection (c);

(2) in subsection (a) by striking out paragraph (3); and

(3) by inserting after subsection (a), the following new

subsection:

‘‘(b)(1) Both the Unites States Court of Federal Claims and

the district courts of the United States shall have jurisdiction

to render judgment on an action by an interested party objecting

to a solicitation by a Federal agency for bids or proposals for

a proposed contract or to a proposed award or the award of a

contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement. Both the

United States Court of Federal Claims and the district courts

of the United States shall have jurisdiction to entertain such an

action without regard to whether suit is instituted before or after

the contract is awarded.

‘‘(2) To afford relief in such an action, the courts may award

any relief that the court considers proper, including declaratory

and injunctive relief except that any monetary relief shall be limited

to bid preparation and proposal costs.

‘‘(3) In exercising jurisdiction under this subsection, the courts

shall give due regard to the interests of national defense and

national security and the need for expeditious resolution of the

action.
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‘‘(4) In any action under this subsection, the courts shall review

the agency’s decision pursuant to the standards set forth in section

706 of title 5.’’.

(b) EFFECTIVE DATE.—This section and the amendments made

by this section shall take effect on December 31, 1996 and shall

apply to all actions filed on or after that date.

(c) STUDY.—No earlier than 2 years after the effective date

of this section, the United States General Accounting Office shall

undertake a study regarding the concurrent jurisdiction of the

district courts of the United States and the Court of Federal Claims

over bid protests to determine whether concurrent jurisdiction is

necessary. Such a study shall be completed no later than December

31, 1999, and shall specifically consider the effect of any proposed

change on the ability of small businesses to challenge violations

of Federal procurement law.

(d) SUNSET.—The jurisdiction of the district courts of the United

States over the actions described in section 1491(b)(1) of title 28,

United States Code (as amended by subsection (a) of this section)

shall terminate on January 1, 2001 unless extended by Congress.

The savings provisions in subsection (e) shall apply if the bid

protest jurisdiction of the district courts of the United States terminates under this subsection.

(e) SAVINGS PROVISIONS.—

(1) ORDERS.—A termination under subsection (d) shall not

terminate the effectiveness of orders that have been issued

by a court in connection with an action within the jurisdiction

of that court on or before December 31, 2000. Such orders

shall continue in effect according to their terms until modified,

terminated, superseded, set aside, or revoked by a court of

competent jurisdiction or by operation of law.

(2) PROCEEDINGS AND APPLICATIONS.—(A) a termination

under subsection (d) shall not affect the jurisdiction of a court

of the United States to continue with any proceeding that

is pending before the court on December 31, 2000.

(B) Orders may be issued in any such proceeding, appeals

may be taken therefrom, and payments may be made pursuant

to such orders, as if such termination had not occurred. An

order issued in any such proceeding shall continue in effect

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

by a court of competent jurisdiction or by operation of law.

(C) Nothing in this paragraph prohibits the discontinuance

or modification of any such proceeding under the same terms

and conditions and to the same extent that proceeding could

have been discontinued or modified absent such termination.
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(f) NONEXCLUSIVITY OF GAO REMEDIES.—In the event that

the bid protest jurisdiction of the district courts of the United

States is terminated pursuant to subsection (d), then section 3556

of title 31, United States Code, shall be amended by striking ‘‘a

court of the United States or’’ in the first sentence.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.