[104th Congress Public Law 320]
[From the U.S. Government Printing Office]
<DOC>
[DOCID: f:publ320.104]
[[Page 3869]]
ADMINISTRATIVE DISPUTE RESOLUTION ACT OF 1996
[[Page 110 STAT. 3870]]
Public Law 104-320
104th Congress
An Act
To reauthorize alternative means of dispute resolution in the Federal
administrative process, and for other purposes. <<NOTE: Oct. 19,
1996 - [H.R. 4194]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Administrative
Dispute Resolution Act of 1996.>>
SECTION 1. <<NOTE: 5 USC 571 note.>> 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.''.
[[Page 110 STAT. 3871]]
(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) <<NOTE: Certification.>> 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''.
[[Page 110 STAT. 3872]]
(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) <<NOTE: President.>> 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.
[[Page 110 STAT. 3873]]
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:
``Sec. 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:
``Sec. 569. Encouraging negotiated rulemaking''; and
(B) by striking subsections (a) through (g) and
inserting the following:
``(a) <<NOTE: President.>> 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.--
[[Page 110 STAT. 3874]]
(1) In general.--Subchapter III of title 5, United States
Code, is amended by adding at the end thereof the following new
section:
``Sec. 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) <<NOTE: 5 USC 563 note.>> 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) <<NOTE: Recommendations.>> 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.
[[Page 110 STAT. 3875]]
``(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) <<NOTE: 28 USC 1491 note.>> 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) <<NOTE: 28 USC 1491 note.>> 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 <<NOTE: Applicability.>> 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) <<NOTE: 28 USC 1491 note.>> 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.
[[Page 110 STAT. 3876]]
(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.
Approved October 19, 1996.
LEGISLATIVE HISTORY--H.R. 4194 (S. 1224):
---------------------------------------------------------------------------
HOUSE REPORTS: No. 104-245 accompanying S. 1224 (Comm. on Governmental
Affairs).
CONGRESSIONAL RECORD, Vol. 142 (1996):
Sept. 27, considered and passed House.
Sept. 30, considered and passed Senate, amended.
Oct. 4, House concurred in Senate amendment.
<all>