[Congressional Record Volume 142, Number 134 (Wednesday, September 25, 1996)]
[House]
[Pages H11108-H11111]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 CONFERENCE REPORT ON H.R. 2977, ADMINISTRATIVE DISPUTE RESOLUTION ACT 
                                OF 1996

  Mr. FLANAGAN (during consideration of H.R. 3852) submitted the 
following conference report and statement on the bill (H.R. 2977) to 
reauthorize alternative means of dispute resolution in the Federal 
administrative process, and for other purposes:

                  Conference Report (H. Rept. 104-841)

       The committee of conference on the disagreeing votes of the 
     two Houses on the amendments of the Senate to the bill (H.R. 
     2977), to reauthorize alternative means of dispute resolution 
     in the Federal administrative process, and for other 
     purposes, having met, after full and free conference, have 
     agreed to recommend and do recommend to their respective 
     Houses as follows:
       That the House recede from its disagreement to the 
     amendment of the Senate to the text of the bill and agree to 
     the same with an amendment as follows:
       In lieu of the matter proposed to be inserted by the Senate 
     amendment, insert the following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Administrative Dispute 
     Resolution Act of 1996''.

[[Page H11109]]

     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.''.

[[Page H11110]]

       (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: PROCUREMENT PROTESTS.

       (a) Procurement 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) and 
     by striking ``(d)'' and inserting ``(d) Exclusive 
     Jurisdiction of Other Tribunals.--'';
       (B) in subsection (a)--
       (i) by striking ``(a)(1)'' and inserting ``(a) Claims 
     Against the United States.--'';
       (ii) in paragraph (2), by striking ``(2) To'' and inserting 
     ``(b) Remedy and Relief.--To''; and
       (iii) by striking paragraph (3); and
       (C) by inserting after subsection (b), as designated by 
     paragraph (1)(B)(ii), the following new subsection (c):
       ``(c) Procurement Protests.--(1) The United States Court of 
     Federal Claims has exclusive jurisdiction to render judgment 
     on an action by an interested party objecting to a 
     solicitation by a Federal agency for procurements 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) In any action under this subsection, the court shall 
     review the agency's decision pursuant to the standards set 
     forth in section 706 of title 5, United States Code.''.
       (2) Clerical amendments.--
       (A) Section heading.--The heading of such section is 
     amended by inserting ``procurement 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 the item relating to section 1491 and 
     inserting the following:

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

       (b) Nonexclusivity of GAO Remedies.--Section 3556 of title 
     31, United States Code, is amended by striking ``a district 
     court of the United States or'' in the first sentence.
       (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 December 31, 1996.
       And the Senate agree to the same.
       That the Senate recede from its amendment to the title of 
     the bill.

     Henry Hyde,
     George W. Gekas,
     Michael Patrick Flanagan,
     John Conyers, Jr.,
     Jack Reed,
                                Managers on the Part of the House.

     Ted Stevens,
     Bill Cohen,
     Chuck Grassley,
     John Glenn,
     Carl Levin,
                               Managers on the Part of the Senate.

       JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF CONFERENCE

       The managers on the part of the House and the Senate at the 
     conference on the disagreeing votes of the two Houses on the 
     amendments of the Senate to the bill (H.R. 2977) to 
     reauthorize alternative means of dispute resolution in the 
     Federal administrative process, and for other purposes, 
     submit the following joint statement to the House and the 
     Senate in explanation of the effect of the action agreed upon 
     by the managers and recommended in the accompanying 
     conference report:
       The Senate amendment to the text of the bill struck all of 
     the House bill after the enacting clause and inserted a 
     substitute text.
       The House recedes from its disagreement to the amendment of 
     the Senate with an amendment that is a substitute for the 
     House bill and the Senate amendment. The differences between 
     the House bill, the Senate amendment, and the substitute 
     agreed to in conference are noted below, except for clerical 
     corrections, conforming changes made necessary by agreements 
     reached by the conferees, and minor drafting and clerical 
     changes.
       The conferees incorporate by reference in this Statement of 
     Managers the legislative history reflected in both House 
     Report 104-597 and Senate Report 104-245. To the extent not 
     otherwise inconsistent with the conference agreement, those 
     reports give expression to the intent of the conferees.
       Section 3--House recedes to Senate amendment with 
     modifications. This section clarifies that, under 5 U.S.C. 
     section 574, a dispute resolution communication between a 
     party and a neutral or a neutral and a party that meets the 
     requirements for confidentiality in section 574 is also 
     exempt from disclosure under FOIA. In addition, a dispute 
     resolution communication originating from a neutral and 
     provided to all of the parties, such as Early Neutral 
     Evaluation, is protected from discovery under 574(b)(7) and 
     from disclosure under FOIA. A dispute resolution 
     communication originating from a party to a party or parties 
     is not protected from disclosure by the ADR Act.
       The Managers recognize that the intent of the Conference 
     Agreement not to exempt from disclosure under FOIA a dispute 
     resolution communication given by one party to another party 
     could be easily thwarted if a neutral in receipt of a dispute 
     resolution communication agrees with a party to in turn pass 
     the communication on to another party. It is the intent of 
     the Managers that if the neutral attempts to circumvent the 
     prohibitions of the ADR Act in this manner, the exemption 
     from FOIA would not apply.
       As with all other FOIA exemptions, the exemption created by 
     section 574(j) is to be construed narrowly. The Managers 
     would not expect the parties to use the new exemption as a 
     mere sham to exempt information from FOIA. Thus, for example, 
     we would not expect litigants to resort to ADR principally as 
     a means of taking advantage of the new exemption. In such a 
     case the new exemption would not apply.
       Section 7--Senate recedes to House with a modification. 
     This section requires the President to designate an agency or 
     to designate or establish an interagency committee to 
     facilitate and encourage the use of alternative dispute 
     resolution. The Managers encourage the President to designate 
     the same entity under this provision as is designated under 
     section 11 (regarding Negotiated Rulemaking). This would 
     promote the coordination of policies, enhance institutional 
     memory on the relevant issues, and make more efficient the 
     use of ADR and Negotiated Rulemaking.
       Section 8--House recedes to Senate amendment with 
     modifications. This section permits the use of binding 
     arbitration under certain conditions, and clarifies that an 
     agency cannot exceed its otherwise applicable settlement 
     authority in alternative dispute resolution proceedings.
       The head of an agency that is a party to an arbitration 
     proceeding will no longer have the authority to terminate the 
     proceeding or vacate any award under 5 U.S.C. section 580. 
     However, it is the Managers' intent that an arbitrator shall 
     not grant an award that is inconsistent with law. In 
     addition, prior to the use of binding arbitration, the head 
     of each agency, in consultation with the Attorney General, 
     must issue guidelines on the use and limitations of binding 
     arbitration.
       Section 11--House recedes to Senate amendment with 
     modifications. This section permanently reauthorizes the 
     Negotiated Rulemaking Act of 1990. The President is required 
     to designate an agency or interagency committee to facilitate 
     and encourage the use of negotiated rulemaking.
       In addition, this section requires the Director of the 
     Office of Management and Budget to take action to expedite 
     the establishment of negotiated rulemaking committees and 
     committees to resolve disputes under the Administrative 
     Dispute Resolution Act. It is the understanding of the 
     Managers that the Federal Advisory Committee Act (FACA) 
     applies to proceedings under the Negotiated Rulemaking Act, 
     but does not apply to proceedings under the Administrative 
     Dispute Resolution Act. The Director also is required to 
     submit recommendations to Congress for any necessary 
     legislative changes within one year after enactment.

[[Page H11111]]

       The Managers deleted language in paragraph (b)(1)(B) 
     determining that property accepted under this section shall 
     be considered a gift to the United States for federal tax 
     purposes because the Managers determined that the language 
     merely repeated current law.
       Secton 12--House recedes to Senate amendment with 
     modifications. This section consolidates federal court 
     jurisdiction for procurement protest cases in the Court of 
     Federal Claims. Previously, in addition to the jurisdiction 
     exercised by the Court of Federal Claims, certain procurement 
     protest cases were subject to review in the federal district 
     courts. The grant of exclusive federal court jurisdiction to 
     the Court of Federal Claims does not affect in any way the 
     authority of the Comptroller General to review procurement 
     protests pursuant to Chapter 35 of Title 31, U.S. Code.
       This section also applies the Administrative Procedure Act 
     standard of review previously applied by the district courts 
     (5 U.S.C. sec. 706) to all procurement protest cases in the 
     Court of Federal Claims. It is the intention of the Managers 
     to give the Court of Federal Claims exclusive jurisdiction 
     over the full range of procurement protest cases previously 
     subject to review in the federal district courts and the 
     Court of Federal Claims. This section is not intended to 
     affect the jurisdiction or standards applied by the Court of 
     Federal Claims in any other area of the law.

     Henry Hyde,
     George W. Gekas,
     Michael Patrick Flanagan,
     John Conyers, Jr.,
     Jack Reed,
                                Managers on the Part of the House.

     Ted Stevens,
     Bill Cohen,
     Chuck Grassley,
     John Glenn,
     Carl Lee,
     Managers on the Part of the Senate.

                          ____________________