Congressional Record, Volume 142 Issue 86 (Wednesday, June 12, 1996)

[Congressional Record Volume 142, Number 86 (Wednesday, June 12, 1996)]
[Senate]
[Pages S6155-S6163]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

ADMINISTRATIVE DISPUTE RESOLUTION ACT OF 1995

Mr. LOTT. Mr. President, I ask unanimous consent that the Senate
proceed to the immediate consideration of Calendar No. 350, S. 1224.
The PRESIDING OFFICER. The clerk will report:
The bill clerk read as follows:

A bill (S. 1224) to amend subchapter IV of chapter 5 of
title 5, United States Code, relating to alternative means of
dispute resolution in the administrative process, and for
other purposes.

The PRESIDING OFFICER. Is there objection to the immediate
consideration of the bill?
There being no objection, the Senate proceeded to consider the bill
which had been reported from the Committee on Governmental Affairs,
with an amendment to strike all after the enacting clause and insert in
lieu thereof the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Administrative Dispute
Resolution Act of 1995''.

SEC. 2. AMENDMENT TO DEFINITIONS.

Section 571 of title 5, United States Code, is amended:
(1) in paragraph (3)--
(A) by striking out ``settlement negotiations,''; and
(B) by striking out ``and arbitration'' and inserting in
lie thereof ``use of ombuds, and binding or nonbinding
arbitration,''; and
(2) in paragraph (8)--
(A) in subparagraph (B) by striking out ``decision,'' and
inserting in lieu thereof ``decision.''; and
(B) by striking out the matter following subparagraph (B).

SEC. 3. AMENDMENTS TO CONFIDENTIALITY PROVISIONS.

(a) Termination of Availability Exemption to
Confidentiality.--Section 574(b) of title 5, United States
Code, is amended:
(1) in paragraph (5) by adding ``or'' at the end thereof;
(2) in paragraph (6) by striking out ``; or'' and inserting
in lieu thereof a period; and
(3) by striking out paragraph (7).
(b) Limitation of Confidentiality Application to
Communication.--Section 574 of title 5, United States Code,
is amended--
(1) in subsection (a) in the matter before paragraph (1) by
striking out ``any information concerning''; and
(2) in subsection (b) in the matter before paragraph (1) by
striking out ``any information concerning''.
(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 striking out
subsection (j) and inserting in lieu thereof the following:
``(j) A dispute resolution communication which is generated
by or provided to an agency or neutral, 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. 581 note; Public Law 101-552; 104 Stat. 2736) is
amended by striking out ``the Administrative Conference of
the United States 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 out 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 out ``the Administrative
Conference of the United States and''.

SEC. 5. AMENDMENTS TO SUPPORT SERVICE 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 out the second sentence
and inserting in lieu thereof: ``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 out 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 out ``agency, or'' and inserting in lieu
thereof ``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 out ``agency, or'' and inserting in lieu thereof
``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 United States Code is
amended--
(1) by striking out subsection (c) and inserting in lieu
thereof the following:
``(c) In consultation with other appropriate Federal
agencies and professional organizations experienced in
matters concerning dispute resolution, the Federal Mediation
and Conciliation Service 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 out ``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 and 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 out ``(1)'' after ``(b)''; and
(2) by striking out paragraph (2).

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. 581 note) is amended by
striking out section 11.

SEC. 10. AUTHORIZATION OF APPROPRIATIONS.

(a) In General.--Subsection 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:

``Sec. 584. Authorization of appropriations.''.

Mr. COHEN. Mr. President, over the past decades, a consensus has
emerged that traditional litigation is an inefficient way to resolve
disputes. Not only is litigation costly, but due to its adversarial,
contentious nature, litigation often deteriorates working relationships
and fails to produce long-term solutions to problems.
Private corporations recognized many years ago that certain types of
disputes could be resolved much less expensively and with less acrimony
by relying on techniques such as mediation, arbitration, and
partnering,

[[Page S6156]]

which collectively have become known as alternative dispute resolution
or ADR.
In 1990, Congress recognized that the Government lagged well behind
the private sector in this field and in response enacted the
Administrative Dispute Resolution Act to promote the use of ADR in
Government agencies. Senators Grassley and Levin led the effort to pass
this legislation and bring the benefits of ADR to the Federal
Government.
The act authorizes agencies to apply ADR to almost any type of claim
involving the Government, requires the appointment of ADR specialists
in each agency, establishes procedures for hiring neutral third-parties
to help resolve disputes, and provides confidentiality protection to
parties participating in ADR.
S. 1224, the bill before the Senate, would permanently reauthorize
this important legislation. It would also improve the system for hiring
mediators, provide additional confidentiality protections to ADR
participants, promote the use of binding arbitration and make a number
of other minor adjustments to the act.
The Subcommittee on Oversight of Government Management held a hearing
on the bill on November 29. At the hearing, the Department of Justice,
the Federal Mediation and Conciliation Service, the Office of
Management and Budget, the American Bar Association, and private
individuals representing the Heritage Foundation and a consortium of
Government contractors all praised the ADR Act and strongly endorsed
its reauthorization. On December 12, 1995, the bill was unanimously
reported, with an amendment in the nature of a substitute, by the
Committee on Governmental Affairs.
The most significant change this bill makes to the original ADR Act
is the repeal of a provision known as the arbitration escape clause.
During consideration of the ADR Act in 1990, this provision was
included to accommodate the Department of Justice's view that agencies
lacked constitutional authority to refer disputes to binding
arbitration. Although many scholars and the sponsors of the bill
disagreed with this view, to satisfy the Department of Justice [DOJ], a
provision was added that enabled Federal agencies to opt-out of
arbitral awards. Unfortunately, this unilateral provision has deterred
private parties from entering into arbitration with the Government. As
one witness testified at the hearing on this reauthorization
legislation, unless the escape clause is eliminated, ``arbitration
likely will never become a viable alternative for the Federal
Government.''
This would be unfortunate. Throughout the private sector, companies
are saving money and reducing litigation costs by using arbitration to
resolve commercial disputes instead of resorting to litigation. If we
want the Government to enjoy the efficiencies of the private sector, it
must have the flexibility to operate as a private business, especially
when the Government is acting as a commercial entity. Indeed, the
Government achieves a double benefit when a case is resolved through
arbitration rather than litigation because not only are agency
litigation costs and attorneys fees reduced, but judicial resources are
freed to pursue criminal cases or other civil matters.
Last year, DOJ's Office of Legal Counsel issued a detailed opinion
concluding that Federal agencies could submit disputes to binding
arbitration without violating the Constitution. Since the
constitutional objection to binding arbitration has been removed, there
is no longer any reason to reauthorize the agency escape clause.
There are two amendments to S. 1224 before the Senate for
consideration. The first amendment is designed to increase the
efficiency of our procurement system by consolidating jurisdiction over
bid protest claims in the Court of Federal Claims. The amendment would
reverse the decision of the D.C. Circuit in Scanwell Lab., Inc. versus
Shaffer (1969), that permitted bid protests to be filed in any district
court across the country. Providing district courts with jurisdiction
to hear bid protest claims has led to forum shopping and the
fragmentation of Government contract law. Consolidation of jurisdiction
in the Court of Federal Claims is necessary to develop a uniform
national law on bid protest issues and end the wasteful practice of
shopping for the most hospitable forum. Congress established the Claims
Court--now the Court of Federal Claims--for the specific purpose of
improving the administration of the law in the areas of patents,
trademarks, Government contracts, Government employment, and
international trade. Scanwell jurisdiction frustrates this purpose and
deprives litigants of the substantial experience and expertise the
Court of Federal Claims has developed in the Government contracting
area.
The Information Technology and Management Reform Act of 1996, which I
authored, eliminated the authority of the General Services Board of
Contract Appeals to entertain bid protests on information technology
contracts and left the General Accounting Office as the single extra-
agency administrative forum for such actions. My amendment to S. 1224
follows this path of reform by creating a single forum for all bid
protest litigation, which will lead to the development of more uniform,
and thus more predictable, law.
Identical legislation passed the Senate as part of the Federal
Acquisition Streamlining Act, but was rejected in conference. The
Department of Justice and Office of Management and Budget strongly
support the addition of this legislation to the ADR Act.
I also want to express my support for the Levin-Grassley amendment to
S. 1224, which would reauthorize the Negotiated Rulemaking Act. This
legislation establishes a framework for agencies to convene interested
parties for the purpose of developing consensus-based regulation. When
it is used, negotiated rulemaking can improve the quality,
acceptability, and timeliness of regulations, reduce litigation, and
enhance industry compliance, thereby reducing the costs of regulations
to both private industry and the Government. Over the past 5 years
negotiated rulemaking has been an unqualified success; there is no
reason not to reauthorize this legislation while we are dealing with
the closely related ADR Act.
In sum, reauthorization of the ADR and Negotiated Rulemaking Acts and
the elimination of Scanwell jurisdiction represent cost-saving,
commonsense improvements to the Federal regulatory and administrative
processes. These reforms are good for the taxpayer, good for our
courts, and good for the parties that have disputes with the
Government.
I congratulate Senators Grassley and Levin for the success of the
original pieces of legislation and commend them for their work on this
reauthorization bill.
I urge my colleagues to support this bill and sincerely hope that it
may be enacted into law during this session of Congress.
I ask unanimous consent that the letter from the Department of
Justice I referred to be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

U.S. Department of Justice,

Office of Legislative Affairs,

Washington, DC, April 12, 1996.
Hon. William S. Cohen,
Chairman, Subcommittee on Oversight of Government Management
and the District of Columbia, Committee on Governmental
Affairs, U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Administration supports your efforts
to enact legislation that would make one small but vital
improvement to the handling of bid protests arising from the
award of Federal contracts--the elimination of district court
jurisdiction over bid protests (the so-called Scanwell
cases).\1\ In disputes between an agency and a contractor
after the award of a contract, Congress has previously
recognized the need for a uniform national body of law to
guide both Federal procurement officials and Federal
contractors. The same need for nationwide uniformity exists
for bid protests. The current forum shopping between the
Federal district courts and the Court of Federal Claims only
encourages needless litigation in a search for the most
hospitable forum, and results in disparate bodies of law
between the circuits. There is simply no need to have
multiple judicial bodies to review bid protests of federal
contacts.
---------------------------------------------------------------------------
\1\ Scanwell Lab., Inc. v. Shaffer, 424 F.2d 859, 869, 137
U.S. App. D.C. 371, 381 (1969) (held, a contractor making a
prima facie showing alleging arbitrary or capricious action,
or an abuse of discretion, by an agency or contracting
officer in making the award of a contract, has standing to
sue in district court under the Administrative Procedure
Act).
---------------------------------------------------------------------------
In the past, Congress has recognized the need for
nationwide uniformity in several areas of the law, and
established the Claims

[[Page S6157]]

Court (now the Court of Federal Claims) and the Court of
Appeals for the Federal Circuit to achieve that result.
Federal Courts Improvement Act of 1982 (FCIA) Pub. L. No. 97-
164. The purpose of the FCIA was to improve ``the
administration of the law in the areas of patents, government
contracts, merit system protection, trademarks and
international trade.'' H. Rep. No. 97-312, 97th Cong., 1st
Sess. 17 (1981). As a result of the enactment of the FCIA,
the Court of Federal Claims was made the sole judicial forum
for resolution of contract disputes between the contractor
and the agency. The very same need exists for nationwide
uniformity in the handling of bid protests.
By eliminating the authority of the General Services Board
of Contract Appeal to entertain bid protests of the award of
information technology contracts, the recently-enacted
defense authorization bill for fiscal year 1996 (Pub. L. No.
104-106) took a significant step forward in the handling of
bid protests by leaving the General Accounting Office as the
sole remaining extra-agency administrative forum. The process
of procurement reform should continue by eliminating Scanwell
jurisdiction, and by creating a single judicial forum to
govern all bid protest litigation, both prior to and after
award. While there is good reason to apply local state law,
as district courts are required to do when they adjudicate
torts under the Federal Tort Claims Act, it is simply
inappropriate to have different interpretations of Federal
contracts applied, depending upon where the contractor
resides or where the contract will be performed. This results
in inconsistent application of legal principles and an
unwieldy body of procurement law.
Our concerns about varying results in the district courts
is not hypothetical. For example, the district court in
Advanced Seal Tech., Inc. v. Perry, 873 F. Supp. 1144 (N.D.
Ill. 1995), disagreed with the district court's holding in
Abel Converting, Inc. v. United States, 679 F. Supp. 1133
(D.D.C. 1988), regarding the burden of proof borne by the
protestor to establish grounds for injunctive relief.
Similarly, the district court in Washington Mechanical
Contractors, Inc. v. United States Dept. of the Navy, 612 F.
Supp. 1243 (N.D. Cal. 1984), disagreed with the district
court's decision in Robert E. Dereckto of Rhode Island, Inc.
v. Goldschmidt, 506 F. Supp. 1059 (D. R.I. 1980), regarding
the quantum of proof necessary to invalidate an award of a
contract. In addition, the district court in Metric Systems
Corp. v. United States Dept. of the Air Force, 673 F. Supp
439 (N.D. Fla. 1987), disagreed with the holding in Acme of
Precision Surgical Co., Inc. v. Weinberger, 580 F. Supp. 490
(E.D. Pa. 1984), that Federal district courts have both pre-
and post-award bid protest jurisdiction. These cases show
that, since Federal district court judges rarely have the
opportunity to review bid protests, as might be suspected,
the results vary from court-to-court.
Legislation should seek to accomplish three important
goals. First, it should achieve a uniform and consistent body
of precedent governing bid protests, by providing interested
parties with a choice of only one administrative and one
judicial forum for the resolution of bid protests. Second, it
should discourage forum shopping between the remaining
tribunal and court by imposing a similar, if not identical,
standard and scope of review in both fora. Finally, it should
impose a standard and scope of review which both recognizes
the deference to the contracting agency in conducting
procurements and also limits expensive, time-consuming and
resource-intensive discovery.
As Mr. Steven Kelman, Administrator for Federal Procurement
Policy, testified before your subcommittee last July:
``With its nationwide jurisdiction and contract expertise,
the Court of Federal Claims could effectively and efficiently
serve as a unified judicial forum operating in the national
interest. This would avoid the unfairness of forum shopping.
At the same time, it would not prevent small businesses from
having their day in court inasmuch as the Court of Federal
Claims is authorized to hold hearings throughout the country
to minimize inconvenience and expense to litigants.''
In summary, the problems associated with district court bid
protest activity can be effectively avoided by vesting
judicial bid protests authority, both pre- and post-award,
exclusively in the Court of Federal Claims and imposing a
deferential standard of review and limited scope of review
similar to that used by the General Accounting Office. With
national jurisdiction, this court would effectively serve as
a unified judicial forum with contract expertise, eliminating
forum shopping and promoting the application of consistent
legal principles.
We urge Congress to take immediate action to eliminate
Scanwell jurisdiction in the district courts. We would be
happy to work with you to ensure enactment of legislation
that would meet this important objective. The Office of
Management and Budget has advised that there is no objection
from the standpoint of the Administration's program to the
presentation of this report.
Sincerely,
Andrew Fois,
Assistant Attorney General.

Mr. LEVIN. Mr. President, we all want a Government that works better
and costs less, and I am pleased that the Senate is considering today
legislation authored by myself and Senator Chuck Grassley to encourage
faster, less costly ways to resolve disputes with the Federal
Government.
It's a fact of life that many people have disputes with the Federal
Government. In the late 1980's, of the 220,000 civil cases filed on
Federal court, more than 55,000 involved the Federal Government in one
way or another. Resolving these disputes costs taxpayers billions of
dollars.
Resolving them before they become courtroom dramas is one way to make
a dent in this billion-dollar drain on taxpayer funds. Mediation,
arbitration, mini-trials, and other methods offer cheaper, faster
alternatives to courtroom battles.
That's why, 6 years ago, Senator Grassley and I cosponsored the
Administrative Dispute Resolution Act of 1990. It is why we have teamed
up again this year on legislation to reauthorize that act and ensure
that alternative dispute resolution techniques, which those familiar
with it call ADR, remain a cost-effective tool that Federal agencies
can use to resolve disputes.
Since the passage of the ADR law in 1990, Federal agencies have
increasingly used alternatives to courtroom litigation to save time and
money. The Army Corps of Engineers, for example, successfully resolved
53 of 55 contract disputes with ADR over a 5-year period, including
settling a $55 million claim in 1994 for $17.3 million in 4 days. The
Resolution Trust Corporation saved legal costs of approximately $115
million from 1991 through 1994, by using ADR instead of litigation. The
Navy shortened dispute resolution times in some cases from 4 years to 3
months by replacing formal litigation with informal, abbreviated
proceedings. Not all Federal agencies have used ADR extensively, but
those agencies that have tried it report both savings and satisfaction
with the process.
In these times of tight Federal budgets and shrinking Government, we
need more of the savings that ADR offers, not less. That's why the ADR
Act should become a permanent fixture in Federal law. The act's
unfortunate lapse in October of last year due to the press of business
before Congress shows why this step is necessary.

The bill that Senator Grassley and I have introduced, S. 1224, would
fill the current statutory void by permanently reauthorizing the ADR
law. It would also fine-tune the law in several ways.
First and most importantly, the bill would eliminate a 30-day escape
hatch that allowed Federal agencies unilaterally to vacate an
arbitration award that disadvantaged the Government. In the 5 years
this one-way escape clause has been on the books, no one has ever
agreed to an arbitration proceeding with the Government on this basis.
Eliminating this unilateral escape clause--which allows the Government
but not its opponent to nullify an arbitration decision--is expected to
encourage parties to agree to use binding arbitration as a cost-saving
alternative to civil litigation. Other bill provisions make it clear
that Federal agencies also retain the option to use nonbinding
arbitration, when they so choose.
Second, the bill would encourage use of ADR methods by clarifying the
confidentiality of ADR proceedings in several respects. The bill would
make it clear that confidential documents prepared for purposes of an
ADR proceeding are also exempt from disclosure under the Freedom of
Information Act. The bill would also strike overly broad language
which, if taken literally, would prohibit ADR neutrals and parties from
disclosing any information concerning an ADR proceeding, even whether
an ADR proceeding took place. The bill would also eliminate a provision
that ended confidentiality protections for any document given to all
parties, since this provision discourages open communications among all
the parties to a dispute. Together, these changes clarify, focus and
strengthen the law's confidentiality protections for ADR negotiations.
Third, the bill would encourage ADR by making it easier to use and
improving coordination with other dispute resolution procedures.
Specifically, the bill would clarify agency authority to hire mediators
and other ADR neutrals on an expedited basis; allow agencies to accept
donated services from State, local and tribal governments to support an
ADR proceeding; add an explicit authorization for such sums as may be
necessary to implement the ADR law; remove a provision which

[[Page S6158]]

barred Federal employees from electing to use ADR methods to resolve
certain personnel disputes; and eliminate special paperwork burdens on
contractors willing to use ADR to resolve small claims against the
Government under the Contract Disputes Act.
Finally, the bill would reassign the tasks of encouraging and
facilitating agency use of ADR methods from the Administrative
Conference of the United States, which no longer exists due to a lack
of appropriations, to the Federal Mediation and Conciliation Service,
which has experience in this area.

Mr. President, I would also like to urge my colleagues to support a
Levin-Grassley amendment to the ADR bill which would also reauthorize
the Negotiated Rulemaking Act of 1990. The Negotiated Rulemaking Act
became law back in 1990, at the same time as the ADR Act--in fact, for
a time, the two laws shared the same United States Code cites--so it
would be fitting to reauthorize both laws in the same piece of
legislation.
Like the ADR law, the Negotiated Rulemaking Act is a reform effort
that seeks to interject common sense and cost savings into the way the
Federal Government does business. In essence, it allows a regulated
community to form an advisory committee with all other interested
parties to work with the Federal Government to draft regulations that
everyone will then have to live by.
An its name implies, the point of the law is to get parties to
negotiate with each other and the Federal Government to devise
sensible, cost effective rules. No one is required to participate in a
negotiation, and no one gives up their rights by agreeing to negotiate.
It is a voluntary, rather than a mandatory, process.
The pleasant surprise is that it works. Since the Negotiated
Rulemaking Act was enacted 6 years ago, agencies across the Government
have tried it and liked it.
Over the past 6 years, negotiated rulemaking has been used to issue
regulations under the Clean Air Act to produce cleaner burning gasoline
and to clear haze from the Grand Canyon. The Coast Guard has used it to
improve ships' oilspill fighting capabilities, while the Federal
Railroad Administration has used it to improve railway worker safety.
The Farm Credit System has negotiated a rule to apportion its
administrative expenses among banks and other parties, while the FCC
has used it to apportion data messaging services on satellites.
President Clinton has embraced the concept with an Executive order
that encourages all agencies to try negotiated rulemaking at least once
per year. Some agencies, like the Federal Aviation Administration, have
found it so rewarding that they have established standing negotiated
rulemaking committees and routinely invoke negotiated rulemaking to
resolve difficult regulatory problems.
These agencies and others have discovered that, in many rulemaking
situations, negotiation beats confrontation in terms of cost, time,
aggravation, and the ability to develop regulations that parties with
very different perspectives can accept. One industry participant in the
clean air negotiations put it this way, ``It's a better situation when
people who are adversaries can sit down at the table and talk about it
rather than throwing bricks at each other in courtrooms and the
press.'' An environmental journal came to the same conclusion, summing
up the Grand Canyon negotiation with the headline, ``See You Later,
Litigator.'' The Washington Post has called negotiated rulemaking
plainly a good idea, while the New York Times has called it an
immensely valuable procedure that ought to be used far more often.

The goal of the Levin-Grassley amendment is exactly that--to
reauthorize the Negotiated Rulemaking Act to ensure continued agency
use of this rulemaking procedure.
The amendment itself is straightforward. Like the ADR bill, it
reauthorizes the 1990 law and makes it a permanent part of the U.S.
Code. Like the ADR bill, it facilitates agency hiring of neutrals,
called convenors and facilitators; provides an authorization for
appropriations; and reassigns the responsibility of facilitating and
encouraging agency use of negotiated rulemaking from the Administrative
Conference of the United States, which has been terminated, to an
agency or interagency committee to be designated by the President.
This amendment has been circulated extensively among negotiated
rulemaking practitioners and is supported by the administration and the
American Bar Association. It has been cleared by both sides of the
aisle. It is being offered now to avoid a lapse in the law which is
scheduled to expire in November.
Mr. President, I would like to thank Senator Grassley for his
leadership on both ADR and negotiated rulemaking; Senator Cohen,
chairman of the Government Affairs Oversight Subcommittee, for his
continuing support; and Senator Stevens, Governmental Affairs Committee
chairman, for his cooperation in getting this legislation to the floor
despite a crowded calendar.
Alternative dispute resolution methods and negotiated rulemaking
provide new and better ways to conduct Government business. They cost
less, they're quicker, they're less adversarial, they develop sensible
solutions to problems, and they free up courts for other business. They
are two success stories in creating a government that works better and
costs less. I urge my colleagues to join Senator Grassley and myself in
voting for the reauthorization of both laws.
Mr. GRASSLEY. Mr. President, the Administrative Dispute Resolution
Act before us, sponsored by myself and Senator Levin, is an amendment
to title 5 of the United States Code. This is a law which I originally
sponsored back in 1989 with Senator Levin. That 1989 law, also titled
the ``Administrative Dispute Resolution Act,'' was crafted to encourage
Federal agencies to streamline dispute resolution processes by use of
alternative dispute resolution techniques rather than by litigation.
These techniques are often collectively referred to as ADR, and include
mediation, arbitration, conciliation, fact-finding, and minitrials.
Since the enactment of that law, most Federal agencies have
formulated ADR programs and consequently have saved significant amounts
of time and money by avoiding litigation of claims. At the same time,
agencies haven't sacrificed fairness or party satisfaction. Overall,
agencies have recognized the benefits of ADR's efficiency. As an
example of the success of these programs, the Environmental Protection
Agency utilizes mediation and arbitration to resolve Superfund, Clean
Water Act, and Resource Conservation and Recovery Act disputes. The EPA
has expressed great satisfaction with the results of these techniques
in their resolution of complex regulatory enforcement issues.
In addition, ADR techniques are far less costly than litigation. The
Federal Deposit Insurance Corporation estimated a savings of $13
million in legal costs in the last 3 years alone because of its ADR
program. The Resolution Trust Corporation estimated it saved $114
million over the last 4 years using ADR techniques. These examples are
proof of ADR's efficiency.
The judiciary has also benefited from adoption of ADR techniques. The
U.S. District Court for the Northern District of California estimated
savings of almost $44,000 in administrative costs per case after it
implemented an early neutral evaluation program. Although the bill
before us doesn't include the judiciary, we are in the process of
drafting a bill that would encourage the judiciary to adopt ADR
programs, which have been in existence on a limited basis.
Representative Moorhead's subcommittee has already held hearings on the
House side regarding this issue, and I expect to pursue this initiative
in my Judiciary Subcommittee this year.
Despite the benefits that both the executive and judiciary branches
have derived from adopting ADR programs, improvements can still be made
to promote ADR. Many ADR programs haven't been integrated into the
daily routines of their agencies. Agencies have had legitimate concerns
about confidentiality, fairness, and quality assurance. Further, the
original law expired in October of last year, and by not extending this
law, progress in agency adoption of ADR techniques has been stalled.
The new ADR bill seeks to address these concerns by modifying and
clarifying the original act to make ADR more attractive to the agencies
in the resolution of their disputes.

[[Page S6159]]

The Governmental Affairs Committee, Subcommittee on Oversight of
Government Management and the District of Columbia, held a hearing on
this bill on November 16, 1995. At the hearing, the bill enjoyed strong
bipartisan support. A number of changes were made to further improve
the bill. I'd like to briefly summarize the bill as it presently is
being proposed and how it will accomplish our goals of promoting the
use of ADR techniques.
First of all, the bill removes the term ``settlement negotiations''
from the group of ADR techniques listed in the 1989 act. This won't
decrease the effectiveness of the act as settlement negotiations are
not and have never been covered by the act as they do not use third
party neutrals in resolving conflicts. Abolition of the term merely
eliminates agency confusion as to whether settlement negotiation is a
statutorily supported ADR technique. It doesn't decrease the scope of
the original act. The bill also clarifies ADR techniques by
substituting the term ``arbitration'' with ``Use of Ombuds, and Binding
or Nonbinding Arbitration.''
The bill addresses agency confidentiality concerns by exempting all
dispute resolution communications from Freedom of Information Act
disclosure. Although these communications have always been confidential
by implication, the proposed bill makes this confidentiality express
and clear.
The bill also deletes the Administrative Conference of the United
States from the promulgation of agency policy addressing the use of ADR
and case management. This acknowledges the unfortunate demise of the
Administrative Conference and its consultation with agencies in
developing and promulgating agency ADR policies, and the maintenance of
rosters of neutrals and arbitrators.
The bill makes it easier for agencies to acquire neutrals by
eliminating the requirement of full competitive procedures in obtaining
expert services and by allowing the acquisition of neutrals from
nonprofit organizations. It also amends the Code to provide that
agencies will consult with the Federal Mediation and Conciliation
Service on encouraging and facilitating agency use of ADR and
developing procedures on obtaining services of neutrals.
The bill expands agency use of services to include services and
facilities of State, local, and tribal governments. This will allow
agencies to take advantage of all available support services in order
to implement their ADR activities in the most effective and efficient
manner possible.
The bill eliminates the requirement that the validity of all contract
claims under $100,000 be certified by the contractor. This change
brings the 1989 ADR Act into conformance with the certification levels
in the Contracts Disputes Act, thus encouraging the use of ADR
techniques in many small disputes where they may be particularly
appropriate.
In addition, the bill deletes the so-called escape clause for binding
arbitration. Under the 1989 law, a Federal agency had the right to
override an ADR decision after it had been entered. These provisions
were inserted in the original act because the Department of Justice
believed there was a constitutional problem regarding agency ability to
ultimately override ADR decisions. In essence, DOJ felt that it was
necessary to protect agency interests from the whim of non-judicial
decisionmakers. The Administrative Conference argued that parties were
reluctant to go through ADR because they believed that an agency could
opt out of a final decision and that effectively ADR rulings were
nonbinding on the Government. Recently, DOJ has dropped these
constitutional concerns. Deletion of these provisions from the law will
ultimately further facilitate and promote the use of ADR, by making ADR
techniques more attractive to the private sector for solving agency
disputes.
Finally, the bill permanently authorizes the ADR Act by striking the
sunset provision presently in the law and authorizing such sums as may
be necessary to carry out the act.
Mr. President, there has been much progress in the implementation and
use of ADR techniques in the Federal Government since I first
introduced the Administrative Dispute Resolution Act back in 1989.
Passage of this amendment to the act will further this progress by
eliminating statutory barriers to ADR use and clarifying statutory
language. I hope my colleagues will support this initiative.
Mr. JOHNSTON. Mr. President, I would like to add my support for this
bill and in particular for a provision, in the amendment providing
permanent reauthorization of the Negotiated Rulemaking Act of 1990,
that addresses what I and others perceive to be the redundancy between
the requirements of this act and the Federal Advisory Committee Act
[FACA].
The Negotiated Rulemaking Act, in section 3(a) (5 U.S.C. 564(a))
mandates a specific procedure for public notification of the
establishment of each negotiated rulemaking committee. This includes
publication ``in the Federal Register and, as appropriate, in trade or
other specialized publications'' of a notice of intent to form the
committee, along with ``a description of the subject and scope of the
rule to be developed, and the issues to be considered; a list of the
interests likely to be significantly affected by the rule; a list of
the persons proposed to represent such interests and the person or
persons proposed to represent the agency; a proposed agenda and
schedule for completing the work of the committee, including a target
date for publication by the agency of a proposed rule for notice and
comment; a description of the administrative support for the committee
to be provided by the agency, including technical assistance; a
solicitation for comments on the proposal to establish the committee,
and the proposed membership of the negotiated rulemaking committee; and
an explanation of how a person may apply or nominate another person for
membership on the committee.'' After publication of this notice, there
is a public comment period of at least 30 days.
In addition to these statutory requirements, negotiated rulemaking
committees are subject to regulatory review requirements of
Presidential Executive orders. Section 3(e) of President Clinton's
Executive Order No. 12866 defines ``regulatory action'' as ``any
substantive action by an agency (normally published in the Federal
Register) that promulgates or is expected to lead to the promulgation
of a final rule or regulation, including notices of inquiry, advance
notices of proposed rulemaking, and notices of proposed rulemaking.''
The notice of intent to establish a negotiated rulemaking committee,
required by 5 U.S.C. 564(a)(1), would appear to be completely within
this definition, as it is analogous to an advanced notice of proposed
rulemaking, and certainly a more ``substantive action by an agency * *
* expected to lead to the promulgation of a final rule'' than a mere
notice of inquiry. Thus, even a plan to publish such a notice, for a
``significant regulatory action,'' must be disclosed to the Office of
Management and Budget [OMB] under section 6(a)(3)(A) of the Executive
Order. Given the very broad definition of ``significant regulatory
actions'' in the Executive order, OMB is effectively capable of
capturing for review any negotiated rulemaking committee that it wants.
Quite apart from these requirements and reviews, negotiated
rulemaking committees must meet a second, parallel set of disclosure
and review requirements contained in section 9 of FACA, because
negotiated rulemaking committees are within the definition of an
``advisory committee'' under FACA. Thus, the FACA requirements in
section 9 for ``consultation with the Administrator'' of the General
Services Administration [GSA], ``timely notice in the Federal
Register,'' and filing of a charter containing a list of specific
topics that closely resembles the topics in section 3(a) of the
Negotiated Rulemaking Act, quoted above, also apply to the negotiated
rulemaking committees.
There is clearly duplication of effort here, without, in my opinion,
much value added. First of all, if the President has put in place a
mechanism, via Executive order, by which the Office of Information and
Regulatory Affairs in OMB must be apprised of a mere plan to form a
negotiated rulemaking committee, what is the added value of a
mandate for a separate consultation with the GSA under FACA? Surely the
President's designee for Government-

[[Page S6160]]

wide regulatory review and coordination, in OMB, is better situated to
advise agencies on the need for such committees than the GSA. Second, a
comparison of the typical advisory committee charter received in the
Committee on Energy and Natural Resources with the typical Federal
Register notice for a negotiated rulemaking committee over the past
year shows that the latter is generally more detailed and informative
than the former. Finally, is it really necessary to have two separate
legal requirements for notice in the Federal Register of the same
event?

In addition to these overlapping requirements and processes, it is a
fair question whether other specific requirements of FACA, for example,
the automatic 2-year sunset of advisory committees, make sense in the
context of negotiated rulemaking. It is envisioned by the Negotiated
Rulemaking Act that negotiated rulemaking committees will routinely
remain in existence until the publication of a final rule, which may
take several years. In this specific context, the one-size-fits-all
requirement of FACA for rechartering every 2 years, while sensible for
advisory committees that have nonspecific oversight-type
responsibilities, would seem somewhat arbitrary.
I am not alone in questioning this apparent duplication. I will ask
unanimous consent to have printed at the end of this statement a
statement on the reauthorization of the Negotiated Rulemaking Act from
the American Bar Association [ABA] and the formal ABA position
statement on which it is based. The formal position of the ABA, jointly
proposed by the ABA Standing Committee on Environmental Law, the
Section of Administrative Law and Regulatory Practice, and the Section
of Natural Resources, Energy, and Environmental Law, and passed by the
ABA House of Delegates, states that--

a federal agency should not be required to secure the
permission of the Office of Management and Budget or the
General Services Administration before it impanels a
committee under the Negotiated Rulemaking Act or the
Administrative Dispute Resolution Act, and that such agencies
must continue to comply with the substantive requirements of
the Federal Advisory Committee Act, including openness and
balance on committees.

These questions of duplication are important in the real world of how
Federal agencies operate because there is already a considerable
transaction cost to the formation and running of advisory committees
under FACA. The formal chartering process under FACA, in practice,
involves numerous levels of review within agencies and is often a time-
consuming bureaucratic step. It is perhaps justifiable to impose such
transaction costs to prevent the formation of generic advisory
committees for which there is not a clear and compelling need. Perhaps,
notwithstanding the current interest in having more, rather than less,
stakeholder input into Federal agency processes and decisions, it is
thought appropriate to view advisory committees generally as a problem
to be contained. But the whole point of the Negotiated Rulemaking Act
is to promote the use of one specific type of advisory committee. The
Negotiated Rulemaking Act creates no new authorities for agencies. If
it were to expire on November 29, of this year, as it is currently
scheduled to do under current law, agencies could still form such
committees and use them in the promulgation of rules. Since, then, the
whole point of the act is to underscore Congress' intent that
negotiated rulemaking be more widely used, we should look carefully at
the question of administrative transaction costs in Federal agencies,
to see if we have unwittingly put in place duplicative steps that make
forming such committees seem to be more trouble than they are worth.
There is evidence that this is now the case. In the National Marine
Fisheries Service of the Department of Commerce, a proposal to form a
negotiated rulemaking committee to resolve issues between commercial
and sport fishing interests regarding tuna fishing in the mid-Atlantic,
published in the Federal Register on February 1, has languished
precisely because the Department of Commerce, like other agencies such
as the Department of Energy, has a process for reviewing proposals to
form advisory committees under FACA that involves sending the proposal
to numerous offices dispersed through the agency structure for
checkoffs on issues such as--in the case of Commerce--national security
concerns. Transiting this sort of administrative gauntlet is a daunting
task, even for hardened bureaucrats. Meanwhile, the underlying dispute
that prompted the proposal to form this committee has escalated,
perhaps to the point where getting to a consensus result has been
imperiled by the delay resulting from administrative inefficiency. If
the administrative duplication occasioned by the overlaps in these two
laws did not exist, the negotiated rulemaking committee could have
started to meet in March of this year.
How representative is this case? It is hard to say. The permanent
reauthorization of Negotiated Rulemaking Act was not covered in the
hearings on this bill, so this problem was not explored on the record.
Given this, I appreciate the willingness of the sponsors of this bill
to address my concerns that a far greater problem may exist. Subsection
(e) of the amendment provides for study, in the Office of Management
and Budget, of this question, so that a complete picture of the problem
can be obtained, and so that recommendations can be formulated. I would
hope that the OMB review, in the spirit of reinventing Government, will
take a careful look at such barriers and proposed best practices to
agencies to facilitate the expeditious formation of advisory committees
generally.
I thank the sponsors of the bill, again, for their assistance and
willingness to address this issue. I hope that if, in the course of the
OMB study, the administration identifies solutions to some of these
issues that require legislative action by Congress, that the sponsors
will be willing to act on such suggestions.
I ask unanimous consent that the material I earlier referred to be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

American Bar Association,

Washington, DC, April 16, 1996.
Hon. Carl Levin,
Governmental Affairs Committee, U.S. Senate, Washington, DC.
Dear Senator Levin: I write on behalf of the American Bar
Association to urge that the Administrative Dispute
Resolution Act and the Negotiated Rulemaking Act be
reauthorized on a permanent basis. We are concerned that the
decision regarding reassignment of negotiated rulemaking
responsibilities formerly carried out by the Administrative
Conference of the United States will prevent the
reauthorization of these two important laws.
These two laws form the framework for consensus building in
government decision-making. The Administrative Dispute
Resolution Act authorizes agencies to use a full array of
alternative dispute resolution processes, if the parties
agree to do so. The Negotiated Rulemaking Act provides a
framework for negotiating rules among representatives of the
affected interests. We have reviewed the draft amendment on
encouraging negotiated rulemaking and offer the following
comments.
(1) The ABA endorses the prompt, permanent reauthorization
of these two laws.
(2) The Association would be pleased to work with you to
determine an appropriate alternative placement of the
consultative function under the Negotiated Rulemaking Act.
(3) The ABA recommends an amendment to the draft to direct
that federal agencies not be required to secure the
permission of the Office of Management and Budget or the
General Service Administration before impanelling a committee
under the Negotiated Rulemaking Act or the Administrative
Dispute Resolution Act. The Association believes the
requirement that agencies secure permission to establish
committees has inhibited the wider use of these important,
consensus based process. However, Congress should continue to
require that such agencies must comply with the substantive
requirements of the Federal Advisory Committee Act, including
openness and balance on committees.
The Negotiated Rulemaking Act and the Administrative
Dispute Resolution Act encourage federal agencies to explore
the use of mediation and consensus building to reduce costs
and increase responsiveness to public concerns. We look
forward to working with you to ensure that these laws are
reauthorized.
Sincerely,
Robert D. Evans.
____

American Bar Association, Standing Committee on Environmental Law;
Section of Administrative Law & Regulatory Practice; Section of Natural
Resources, Energy & Environmental Law

recommendation

Be it Resolved, That the public participation provisions of
local, state and federal environmental laws and international
environmental agreements and treaties should recognize and
express the principle that the

[[Page S6161]]

public and all affected interests should be provided
meaningful and effective involvement and should be expected
to participate in consensus building efforts to ensure that
government decision-making regarding the administration,
regulation, and enforcement of environmental laws is open,
fair, efficient and credible; Be it further
Resolved, That the public participation provisions of
local, state and federal environmental laws should include
express authority allowing government agencies to choose
innovative public participation, stakeholder-involvement and
shared decision-making models, including site-specific,
negotiated consensus-building processes and negotiated
rulemaking, which involve all affected stakeholders, such as
citizens, potentially responsible parties, and affected
federal, tribal, state, territorial and local governments; be
it further
Resolved, That federal agencies should use more fully the
Administrative Dispute Resolution Act and the Negotiated
Rulemaking Act for making environmental decisions, and state
agencies should follow similar procedures permitted under
generally applicable provisions of administrative law; be it
further
Resolved, That Congress should reauthorize the
Administrative Dispute Resolution Act and the Negotiated
Rulemaking Act on a permanent basis, and, in doing so,
Congress should revise provisions that inhibit their wider
use to resolve environmental matters by clarifying:
(1) that the Administrative Dispute Resolution Act
authorizes the use of the full range of dispute resolution
processes for making administrative decisions, including
general consensus building and the resolution of issues
between private parties that otherwise would be decided by
the environmental agency;
(2) that the decision of an arbitrator, where applicable,
should be final when issued, without the authority of an
agency to unilaterally override such decision;
(3) that communications between a party and the neutral
should be protected from disclosure except for the
circumstances defined in the Administrative Dispute
Resolution Act; to that extent the Administrative Dispute
Resolution Act should be regarded as a Section (b)(3)
exemption under the Freedom of Information Act; and
(4) that a federal agency should not be required to secure
the permission of the Office of Management and Budget or the
General Services Administration before it impanels a
committee under the Negotiated Rulemaking Act or the
Administrative Dispute Resolution Act, and that such agencies
must continue to comply with the substantive requirements of
the Federal Advisory Committee Act, including openness and
balance on committees; be it further
Resolved, That the procedures described in the Negotiated
Rulemaking Act should be used for making policy decisions
under environmental statutes; be it finally
Resolved, That the framework established under the
Negotiated Rulemaking Act and the Administrative Dispute
Resolution Act provide the means by which the U.S.
Environmental Protection Agency (``EPA''), community and
business interests, state, tribal and local governments, and
environmental and other non-governmental organizations can
reach agreement on the appropriate issues. For example, in
addition to existing alternative dispute resolution
provisions in the Comprehensive Environmental Response,
Compensation and Liability Act (``CERCLA''), potentially
responsible parties are encouraged to use the Administrative
Dispute Resolution Act to make allocation decisions, while
environmental agencies are encouraged to use the Negotiated
Rulemaking Act for making policy decisions. In doing so, EPA
should appoint a single, relatively senior official to
represent the agency and various components of its staff in
such negotiations, and policy negotiations and allocation
decisions should be coordinated to the extent appropriate.

Amendment No. 4045

(Purpose: To reauthorize the Negotiated Rulemaking Act of 1990, and for
other purposes)

Mr. LOTT. Mr. President, I understand that there is an amendment at
the desk in behalf of Senators Levin and Grassley. I ask for its
consideration.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:

The Senator from Mississippi [Mr. Lott], for Mr. Levin, for
himself and Mr. Grassley, proposes an amendment numbered
4045.

At the end of the bill, add the following new section:

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 out subsections (a) through (g) and
inserting in lieu thereof 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, provided that agency
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. For
purposes of Federal income, estate, or gift taxes, property
accepted under this section shall be considered as a gift,
devise, or bequest to the United States.''.
(2) Technical and conforming amendment.--The table of
sections for chapter 5 of title 5, United States Code, is
amended by striking out the item relating to section 569 and
inserting in lieu thereof 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:

``Sec. 570a Authorization of appropriations.''

(e) Study.--No later than 180 days after the enactment of
this Act, the Director of the Office of Management and Budget
shall complete a study with recommendations on expediting the
establishment of negotiated rulemaking committees, including
eliminating any redundant administrative requirements related
to filing a committee charter under section 9 of the Federal
Advisory Committee Act and providing public notice of such
committee under section 564 of title 5, United States Code.

The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 4045) was agreed to.

Amendment No. 4046

(Purpose: To provide the United States Court of Federal Claims with
exclusive jurisdiction over contract bid protests)

Mr. LOTT. I understand Senator Cohen has an amendment at the desk,
and I ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:

The Senator from Mississippi [Mr. Lott], for Mr. Cohen,
proposes an amendment numbered 4046.

At the end of the Committee amendment add the following:

SEC. 11. JURISDICTION OF THE UNITED STATES COURT OF FEDERAL
CLAIMS: BID PROTESTS.

[[Page S6162]]

``(3) In exercising jurisdiction under this subsection, the
court shall give due regard to the interests of national
defense and national security and the need for expeditious
resolution of the action.
``(4) The district courts of the United States do not have
jurisdiction of any action referred to in paragraph (1).''.
(2) Clerical amendments.--
(A) Section heading.--The heading of such section is
amended by inserting ``bid protests;'' after ``generally;'',
(B) Table of sections.--The table of sections at the
beginning of chapter 91 of title 28, United States Code, is
amended by striking out the item relating to section 1491 and
inserting in lieu thereof the following:

``1491. Claims against United States generally; bid protests; actions
involving Tennessee Valley Authority.''.

(b) Nonexclusivity of GAO Remedies.--Section 3556 of title
31, United States Code, is amended by striking out ``a
district court of the United States or the United States
Claims Court'' in the first sentence and inserting in lieu
thereof ``the United States Court of Federal Claims''.
(c) Savings Provisions.--
(1) Orders.--The amendments made by this section 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 the day before the effective
date of this section. 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) The amendments made
by this section shall not affect the jurisdiction of a court
of the United States to continue with any proceeding that is
pending before the court on the day before the effective date
of this section.
(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 this section had not been enacted. 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 such proceeding
could have been discontinued or modified if this section had
not been enacted.
(d) Effective Date.--This section and the amendments made
by this section shall take effect on October 1, 1996.

The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 4046) was agreed to.
Mr. LOTT. I ask unanimous consent that the committee amendment be
agreed to, the bill then be deemed read a third time, the Senate then
immediately proceed to Calendar No. 427, H.R. 2977; further, that all
after the enacting clause be stricken and the text of S. 1224, as
amended, be inserted in lieu thereof, the bill then be read a third
time, passed, the motion to reconsider be laid upon the table, the
Senate then insist on its amendment and request a conference with the
House, the Chair be authorized to appoint conferees on the part of the
Senate, the bill S. 1224 be placed back on the calendar; and, finally,
that any statements relating to the bill be placed at the appropriate
place in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The bill (H.R. 2977), as amended, was deemed read for the third time,
and passed as follows:

Resolved, That the bill from the House of Representatives
(H.R. 2977) entitled ``An Act to reauthorize alternative
means of dispute resolution in the Federal administrative
process, and for other purposes.'', do pass with the
following amendments:
Strike out all after the enacting clause and insert:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Administrative Dispute
Resolution Act of 1995''.

SEC. 2. AMENDMENT TO DEFINITIONS.

Section 571 of title 5, United States Code, is amended--
(1) in paragraph (3)--
(A) by striking out ``settlement negotiations,''; and
(B) by striking out ``and arbitration'' and inserting in
lieu thereof ``use of ombuds, and binding or nonbinding
arbitration,''; and
(2) in paragraph (8)--
(A) in subparagraph (B) by striking out ``decision,'' and
inserting in lieu thereof ``decision.''; and
(B) by striking out the matter following subparagraph (B).

SEC. 3. AMENDMENTS TO CONFIDENTIALITY PROVISIONS.

(a) Termination of Availability Exemption to
Confidentiality.--Section 574(b) of title 5, United States
Code, is amended--
(1) in paragraph (5) by adding ``or'' at the end thereof;
(2) in paragraph (6) by striking out ``; or'' and inserting
in lieu thereof a period; and
(3) by striking out paragraph (7).
(b) Limitation of Confidentiality Application to
Communication.--Section 574 of title 5, United States Code,
is amended--
(1) in subsection (a) in the matter before paragraph (1) by
striking out ``any information concerning''; and
(2) in subsection (b) in the matter before paragraph (1) by
striking out ``any information concerning''.
(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 striking out
subsection (j) and inserting in lieu thereof the following:
``(j) A dispute resolution communication which is generated
by or provided to an agency or neutral, 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. 581 note; Public Law 101-552; 104 Stat. 2736) is
amended by striking out ``the Administrative Conference of
the United States 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 out 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 out ``the Administrative
Conference of the United States and''.

SEC. 5. AMENDMENTS TO SUPPORT SERVICE 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.

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 out ``agency, or'' and inserting in lieu
thereof ``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 out ``agency, or'' and inserting in lieu thereof
``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 out subsection (c) and inserting in lieu
thereof the following:
``(c) In consultation with other appropriate Federal
agencies and professional organizations experienced in
matters concerning dispute resolution, the Federal Mediation
and Conciliation Service 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 out ``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 out 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 out ``(1)'' after ``(b)''; and
(2) by striking out paragraph (2).

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. 581 note) is amended by
striking out 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.''.

[[Page S6163]]

(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:

``Sec. 584. Authorization of appropriations.''.

SEC. 11. REAUTHORIZATION OF NEGOTIATED RULEMAKING ACT OF
1990.

``Sec. 569. Encouraging negotiated rulemaking''; and

(B) by striking out subsections (a) through (g) and
inserting in lieu thereof 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: Provided, That
agency 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.
For purposes of Federal income, estate, or gift taxes,
property accepted under this section shall be considered as a
gift, devise, or bequest to the United States.''.
(2) Technical and conforming amendment.--The table of
sections for chapter 5 of title 5, United States Code, is
amended by striking out the item relating to section 569 and
inserting in lieu thereof the following:

``569. Encouraging negotiated rulemaking.''.

``Sec. 570a. Authorization of appropriations

``Sec. 570a. Authorization of appropriations.''.

SEC. 12. JURISDICTION OF THE UNITED STATES COURT OF FEDERAL
CLAIMS: BID PROTESTS.

(a) Bid Protests.--
(1) Termination of jurisdiction of district courts.--
Section 1491 of title 28, United States Code, is amended--
(A) by redesignating subsection (b) as subsection (d);
(B) in subsection (a)--
(i) by striking out ``(a)(1)'' and inserting in lieu
thereof ``(a) Claims Against the United States.--'';
(ii) in paragraph (2), by striking out ``(2) To'' and
inserting in lieu thereof ``(b) Remedy and Relief.--To''; and
(iii) by striking out paragraph (3); and
(C) by inserting after subsection (b), as designated by
paragraph (1)(B)(ii), the following new subsection (c):
``(c) Bid Protests.--(1) The United States Court of Federal
Claims has 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. The court has
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 court may
award any relief that the court considers proper, including
declaratory and injunctive relief.
``(3) In exercising jurisdiction under this subsection, the
court shall give due regard to the interests of national
defense and national security and the need for expeditious
resolution of the action.
``(4) The district courts of the United States do not have
jurisdiction of any action referred to in paragraph (1).''.
(2) Clerical amendments.--
(A) Section heading.--The heading of such section is
amended by inserting ``bid protests;'' after ``generally;''.
(B) Table of sections.--The table of sections at the
beginning of chapter 91 of title 28, United States Code, is
amended by striking out the item relating to section 1491 and
inserting in lieu thereof the following:

``1491. Claims against United States generally; bid protests; actions
involving Tennessee Valley Authority.''.

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