Acquisition ADR in the DON

Welcome to the Acquisition ADR Page. ADR is available at all stages of the acquisition process.

Bid Protests

Under 4 C.F.R. § 21.10(e), the Government Accountability Office (GAO) offers ADR for bid protests. ADR usually takes the form of negotiation assistance either before or after a protest is filed, or outcome prediction. In outcome prediction, the GAO will advise the parties of the likely outcome of the protest in order to allow the party likely to be unsuccessful to take appropriate action to resolve the protest without a written decision. See Bid Protests at GAO: A Descriptive Guide (8th ed. 2006), at pp. 34-35.

Contract Administration

ADR is appropriate for issues in controversy, claims, and appeals that arise out of the performance of an acquisition contract. See Federal Acquisition Regulation (FAR) § 33.214. The DON typically uses the Armed Services Board of Contract Appeals (ASBCA) to conduct mediations or summary trials with binding decision. These methods reduce the processing costs for both parties, and frequently results in resolution. From FY 01 to FY 04, the DON ADR Program estimated that commands avoided approximately $3M in litigation expenses for travel, depositions, experts, etc. More costs were avoided (but not estimated) due to the fact that 70 major documents (briefs, expert reports, discovery responses, etc.) that would be necessary for the usual ASBCA procedure, were not written.

In 2007, the DON became the first agency subject to the FAR to have the authority to participate in binding arbitration for contract controversies. This policy, found in SECNAVINST 5800.15, is written as broadly as possible to give the contracting parties the maximum flexibility. Some key features include:

- Arbitration remains voluntary;
- Arbitrators can be from any source acceptable to the parties;
- Promotes rapid awards with very limited grounds to overturn;
- Parties may jointly limit the amount of discovery; and,
- Parties may participate in the selection of the arbitrator.

For more background on the policy, see the slideshow section of this website, or visit the Binding Arbitration Support Webpage (coming soon!). The DON ADR Program offers training to commands that wish to learn more.

The DON ADR Program also offers training to ombudsmen who work under the provisions of FAR §16.505. These ombudsmen handle issues that arise in the award of delivery orders under multiple award, indefinite delivery, indefinite quantity contracts. The most active visible example of these ombudsmen is found in the NAVSEA’s Seaport Program.

Finally, another notable success for the DON in the area of acquisition ADR is the Facilitated Partnering process used by the Naval Facilities Engineering Command. In 2006, the Office of Federal Procurement Policy recognized this program by bestowing its ADR Award in Acquisition to NAVFAC. As described in detail in the nomination submitted by the DON ADR Program, NAVFAC partnering is the result of “mindset + commitment + process. These three elements are the key to NAVFAC’s partnering success. RADM Loose accepted the award on behalf of the NAVFAC partnering teams composed of owners, NAVFAC personnel and contractors, and described how partnering is a force multiplier that contributes to the DON mission.

As described in the course catalogue, the DON ADR Program offers several general and specific courses applicable to acquisition ADR. Further information is contained in the following links:

Facilitated Partnering
Sample ADR Clause for Contracts
Binding Arbitration Support Page (coming soon!)
ASBCA ADR Notice
ASBCA ADR Forms
P-3 Success Story
Centex Success Story
DON Office of Small Business Programs

OFPP’S 2006 ADR AWARD RECOGNIZES THE NAVFAC PARTNERING SYSTEM

In a ceremony at the famous Indian Treaty Room in the Old Executive OfficeBuilding on March 29th, Robert Burton, Associate Administrator of the Office of Procurement Policy (OFPP), recognized the Naval Facilities Engineering Command’s (NAVFAC) year-old policy on partnering for construction and facilities services contracts. As described in detail in the nomination submitted by the DON ADR Program, NAVFAC partnering is the result of “mindset + commitment + process. These three elements are the key to NAVFAC’s partnering success. RADM Loose accepted the award on behalf of the NAVFAC partnering teams composed of owners, NAVFAC personnel and contractors, and described how partnering is a force multiplier that contributes to the DON mission.