[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4194 Enrolled Bill (ENR)]

        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.''.
    (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''.
    (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.

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) 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.--
        (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) 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.
    ``(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.
    (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.