[104th Congress Public Law 320]
[From the U.S. Government Printing Office]


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[DOCID: f:publ320.104]


[[Page 3869]]

              ADMINISTRATIVE DISPUTE RESOLUTION ACT OF 1996

[[Page 110 STAT. 3870]]

Public Law 104-320
104th Congress

                                 An Act


 
 To reauthorize alternative means of dispute resolution in the Federal 
    administrative process, and for other purposes. <<NOTE: Oct. 19, 
                         1996 -  [H.R. 4194]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, <<NOTE: Administrative 
Dispute Resolution Act of 1996.>> 

SECTION 1. <<NOTE: 5 USC 571 note.>>  SHORT TITLE.

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

SEC. 2. AMENDMENT TO DEFINITIONS.

    Section 571 of title 5, United States Code, is amended--
            (1) in paragraph (3)--
                    (A) by striking ``, in lieu of an adjudication as 
                defined in section 551(7) of this title,'';
                    (B) by striking ``settlement negotiations,''; and
                    (C) by striking ``and arbitration'' and inserting 
                ``arbitration, and use of ombuds''; and
            (2) in paragraph (8)--
                    (A) in subparagraph (B) by striking ``decision,'' 
                and inserting ``decision;''; and
                    (B) by striking the matter following subparagraph 
                (B).

SEC. 3. AMENDMENTS TO CONFIDENTIALITY PROVISIONS.

    (a) Limitation of Confidentiality Application to 
Communication.--Subsections (a) and (b) of section 574 of title 5, 
United States Code, are each amended in the matter before paragraph (1) 
by striking ``any information concerning''.
    (b) Dispute Resolution Communication.--Section 574(b)(7) of title 5, 
United States Code, is amended to read as follows:
            ``(7) except for dispute resolution communications generated 
        by the neutral, the dispute resolution communication was 
        provided to or was available to all parties to the dispute 
        resolution proceeding.''.

    (c) Alternative Confidentiality Procedures.--Section 574(d) of title 
5, United States Code, is amended--
            (1) by inserting ``(1)'' after ``(d)''; and
            (2) by adding at the end thereof the following new 
        paragraph:

    ``(2) To qualify for the exemption established under subsection (j), 
an alternative confidential procedure under this subsection may not 
provide for less disclosure than the confidential procedures otherwise 
provided under this section.''.

[[Page 110 STAT. 3871]]

    (d) Exemption From Disclosure by Statute.--Section 574 of title 5, 
United States Code, is amended by amending subsection (j) to read as 
follows:
    ``(j) A dispute resolution communication which is between a neutral 
and a party and which may not be disclosed under this section shall also 
be exempt from disclosure under section 552(b)(3).''.

SEC. 4. AMENDMENT TO REFLECT THE CLOSURE OF THE 
            ADMINISTRATIVE CONFERENCE.

    (a) Promotion of Administrative Dispute Resolutions.--Section 
3(a)(1) of the Administrative Dispute Resolution Act (5 U.S.C. 571 note; 
Public Law 101-552; 104 Stat. 2736) is amended to read as follows:
            ``(1) consult with the agency designated by, or the 
        interagency committee designated or established by, the 
        President under section 573 of title 5, United States Code, to 
        facilitate and encourage agency use of alternative dispute 
        resolution under subchapter IV of chapter 5 of such title; 
        and''.

    (b) Compilation of Information.--
            (1) In general.--Section 582 of title 5, United States Code, 
        is repealed.
            (2) Technical and conforming amendment.--The table of 
        sections for chapter 5 of title 5, United States Code, is 
        amended by striking the item relating to section 582.

    (c) Federal Mediation and Conciliation Service.--Section 203(f) of 
the Labor Management Relations Act, 1947 (29 U.S.C. 173(f)) is amended 
by striking ``the Administrative Conference of the United States and 
other agencies'' and inserting ``the agency designated by, or the 
interagency committee designated or established by, the President under 
section 573 of title 5, United States Code,''.

SEC. 5. AMENDMENTS TO SUPPORT SERVICES PROVISION.

    Section 583 of title 5, United States Code, is amended by inserting 
``State, local, and tribal governments,'' after ``other Federal 
agencies,''.

SEC. 6. AMENDMENTS TO THE CONTRACT DISPUTES ACT.

    Section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) is 
amended--
            (1) <<NOTE: Certification.>>  in subsection (d) by striking 
        the second sentence and inserting: ``The contractor shall 
        certify the claim when required to do so as provided under 
        subsection (c)(1) or as otherwise required by law.''; and
            (2) in subsection (e) by striking the first sentence.

SEC. 7. AMENDMENTS ON ACQUIRING NEUTRALS.

    (a) Expedited Hiring of Neutrals.--
            (1) Competitive requirements in defense agency 
        contracts.--Section 2304(c)(3)(C) of title 10, United States 
        Code, is amended by striking ``agency, or'' and inserting 
        ``agency, or to procure the services of an expert or neutral for 
        use''.
            (2) Competitive requirements in federal contracts.--Section 
        303(c)(3)(C) of the Federal Property and Administrative Services 
        Act of 1949 (41 U.S.C. 253(c)(3)(C)), is amended by striking 
        ``agency, or'' and inserting ``agency, or to procure the 
        services of an expert or neutral for use''.

[[Page 110 STAT. 3872]]

    (b) References to the Administrative Conference of the United 
States.--Section 573 of title 5, United States Code, is amended--
            (1) by striking subsection (c) and inserting the following:

    ``(c) <<NOTE: President.>>  The President shall designate an agency 
or designate or establish an interagency committee to facilitate and 
encourage agency use of dispute resolution under this subchapter. Such 
agency or interagency committee, in consultation with other appropriate 
Federal agencies and professional organizations experienced in 
matters concerning dispute resolution, shall--
            ``(1) encourage and facilitate agency use of alternative 
        means of dispute resolution; and
            ``(2) develop procedures that permit agencies to obtain the 
        services of neutrals on an expedited basis.''; and
            (2) in subsection (e) by striking ``on a roster established 
        under subsection (c)(2) or a roster maintained by other public 
        or private organizations, or individual''.

SEC. 8. ARBITRATION AWARDS AND JUDICIAL REVIEW.

    (a) Arbitration Awards.--Section 580 of title 5, United States Code, 
is amended--
            (1) by striking subsections (c), (f), and (g); and
            (2) by redesignating subsections (d) and (e) as subsections 
        (c) and (d), respectively.

    (b) Judicial Awards.--Section 581(d) of title 5, United States Code, 
is amended--
            (1) by striking ``(1)'' after ``(b)''; and
            (2) by striking paragraph (2).

    (c) Authorization of Arbitration.--Section 575 of title 5, United 
States Code, is amended--
            (1) in subsection (a)(2), by striking ``Any'' and inserting 
        ``The'';
            (2) in subsection (a)(2), by adding at the end the 
        following: ``Each such arbitration agreement shall specify a 
        maximum award that may be issued by the arbitrator and may 
        specify other conditions limiting the range of possible 
        outcomes.'';
            (3) in subsection (b)--
                    (A) by striking ``may offer to use arbitration for 
                the resolution of issues in controversy, if'' and 
                inserting ``shall not offer to use arbitration for the 
                resolution of issues in controversy unless''; and
                    (B) by striking in paragraph (1) ``has authority'' 
                and inserting ``would otherwise have authority''; and
            (4) by adding at the end the following:

    ``(c) Prior to using binding arbitration under this subchapter, the 
head of an agency, in consultation with the Attorney General and after 
taking into account the factors in section 572(b), shall issue guidance 
on the appropriate use of binding arbitration and when an officer or 
employee of the agency has authority to settle an issue in controversy 
through binding arbitration.''.

SEC. 9. PERMANENT AUTHORIZATION OF THE ALTERNATIVE DISPUTE RESOLUTION 
            PROVISIONS OF TITLE 5, UNITED STATES CODE.

    The Administrative Dispute Resolution Act (Public Law 101-552; 104 
Stat. 2747; 5 U.S.C. 571 note) is amended by striking section 11.

[[Page 110 STAT. 3873]]

SEC. 10. AUTHORIZATION OF APPROPRIATIONS.

    (a) In General.--Subchapter IV of title 5, United States Code, is 
amended by adding at the end thereof the following new section:

``Sec. 584. Authorization of appropriations

    ``There are authorized to be appropriated such sums as may be 
necessary to carry out the purposes of this subchapter.''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 5 of title 5, United States Code, is amended by inserting after 
the item relating to section 583 the following:

``584. Authorization of appropriations.''.

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

    (a) Permanent Reauthorization.--Section 5 of the Negotiated 
Rulemaking Act of 1990 (Public Law 101-648; 5 U.S.C. 561 note) is 
repealed.
    (b) Closure of Administrative Conference.--
            (1) In general.--Section 569 of title 5, United States Code, 
        is amended--
                    (A) by amending the section heading to read as 
                follows:

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

                    (B) by striking subsections (a) through (g) and 
                inserting the following:

    ``(a) <<NOTE: President.>>  The President shall designate an agency 
or designate or establish an interagency committee to facilitate and 
encourage agency use of negotiated rulemaking. An agency that is 
considering, planning, or conducting a negotiated rulemaking may consult 
with such agency or committee for information and assistance.

    ``(b) To carry out the purposes of this subchapter, an agency 
planning or conducting a negotiated rulemaking may accept, hold, 
administer, and utilize gifts, devises, and bequests of property, both 
real and personal if that agency's acceptance and use of such gifts, 
devises, or bequests do not create a conflict of interest. Gifts and 
bequests of money and proceeds from sales of other property received as 
gifts, devises, or bequests shall be deposited in the Treasury and shall 
be disbursed upon the order of the head of such agency. Property 
accepted pursuant to this section, and the proceeds thereof, shall be 
used as nearly as possible in accordance with the terms of the gifts, 
devises, or bequests.''.
            (2) Technical and conforming amendment.--The table of 
        sections for chapter 5 of title 5, United States Code, is 
        amended by striking the item relating to section 569 and 
        inserting the following:

``569. Encouraging negotiated rulemaking.''.

    (c) Expedited Hiring of Convenors and Facilitators.--
            (1) Defense agency contracts.--Section 2304(c)(3)(C) of 
        title 10, United States Code, is amended by inserting ``or 
        negotiated rulemaking'' after ``alternative dispute 
        resolution''.
            (2) Federal contracts.--Section 303(c)(3)(C) of the 
        Federal Property and Administrative Services Act of 1949 (41 
        U.S.C. 253(c)(3)(C)), is amended by inserting ``or negotiated 
        rulemaking'' after ``alternative dispute resolution''.

    (d) Authorization of Appropriations.--

[[Page 110 STAT. 3874]]

            (1) In general.--Subchapter III of title 5, United States 
        Code, is amended by adding at the end thereof the following new 
        section:

``Sec. 570a. Authorization of appropriations

    ``There are authorized to be appropriated such sums as may be 
necessary to carry out the purposes of this subchapter.''.
            (2) Technical and conforming amendment.--The table of 
        sections for chapter 5 of title 5, United States Code, is 
        amended by inserting after the item relating to section 570 the 
        following:

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

    (e) <<NOTE: 5 USC 563 note.>>  Negotiated Rulemaking Committees.--
The Director of the Office of Management and Budget shall--
            (1) within 180 days of the date of the enactment of this 
        Act, take appropriate action to expedite the establishment of 
        negotiated rulemaking committees and committees established to 
        resolve disputes under the Administrative Dispute Resolution 
        Act, including, with respect to negotiated rulemaking 
        committees, eliminating any redundant administrative 
        requirements related to filing a committee charter under section 
        9 of the Federal Advisory Committee Act (5 U.S.C. App.) and 
        providing public notice of such committee under section 564 of 
        title 5, United States Code; and
            (2) <<NOTE: Recommendations.>>  within one year of the date 
        of the enactment of this Act, submit recommendations to Congress 
        for any necessary legislative changes.

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

    (a) Bid Protests.--Section 1491 of title 28, United States Code, is 
amended--
            (1) by redesignating subsection (b) as subsection (c);
            (2) in subsection (a) by striking out paragraph (3); and
            (3) by inserting after subsection (a), the following new 
        subsection:

    ``(b)(1) Both the Unites States Court of Federal Claims and the 
district courts of the United States shall have jurisdiction to render 
judgment on an action by an interested party objecting to a solicitation 
by a Federal agency for bids or proposals for a proposed contract or to 
a proposed award or the award of a contract or any alleged violation of 
statute or regulation in connection with a procurement or a proposed 
procurement. Both the United States Court of Federal Claims and the 
district courts of the United States shall have jurisdiction to 
entertain such an action without regard to whether suit is instituted 
before or after the contract is awarded.
    ``(2) To afford relief in such an action, the courts may award any 
relief that the court considers proper, including declaratory and 
injunctive relief except that any monetary relief shall be limited to 
bid preparation and proposal costs.
    ``(3) In exercising jurisdiction under this subsection, the courts 
shall give due regard to the interests of national defense and national 
security and the need for expeditious resolution of the action.

[[Page 110 STAT. 3875]]

    ``(4) In any action under this subsection, the courts shall review 
the agency's decision pursuant to the standards set forth in section 706 
of title 5.''.
    (b) <<NOTE: 28 USC 1491 note.>>  Effective Date.--This section and 
the amendments made by this section shall take effect on December 31, 
1996 and shall apply to all actions filed on or after that date.

    (c) Study.--No earlier than 2 years after the effective date of this 
section, the United States General Accounting Office shall undertake a 
study regarding the concurrent jurisdiction of the district courts of 
the United States and the Court of Federal Claims over bid protests to 
determine whether concurrent jurisdiction is necessary. Such a study 
shall be completed no later than December 31, 1999, and shall 
specifically consider the effect of any proposed change on the ability 
of small businesses to challenge violations of Federal procurement law.
    (d) <<NOTE: 28 USC 1491 note.>>  Sunset.--The jurisdiction of the 
district courts of the United States over the actions described in 
section 1491(b)(1) of title 28, United States Code (as amended by 
subsection (a) of this section) shall terminate on January 1, 2001 
unless extended by Congress. The <<NOTE: Applicability.>>  savings 
provisions in subsection (e) shall apply if the bid protest jurisdiction 
of the district courts of the United States terminates under this 
subsection.

    (e) <<NOTE: 28 USC 1491 note.>>  Savings Provisions.--
            (1) Orders.--A termination under subsection (d) shall not 
        terminate the effectiveness of orders that have been issued by a 
        court in connection with an action within the jurisdiction of 
        that court on or before December 31, 2000. Such orders shall 
        continue in effect according to their terms until modified, 
        terminated, superseded, set aside, or revoked by a court of 
        competent jurisdiction or by operation of law.
            (2) Proceedings and applications.--(A) a termination under 
        subsection (d) shall not affect the jurisdiction of a court of 
        the United States to continue with any proceeding that is 
        pending before the court on December 31, 2000.
            (B) Orders may be issued in any such proceeding, appeals may 
        be taken therefrom, and payments may be made pursuant to such 
        orders, as if such termination had not occurred. An order issued 
        in any such proceeding shall continue in effect until modified, 
        terminated, superseded, set aside, or revoked by a court of 
        competent jurisdiction or by operation of law.
            (C) Nothing in this paragraph prohibits the discontinuance 
        or modification of any such proceeding under the same terms and 
        conditions and to the same extent that proceeding could have 
        been discontinued or modified absent such termination.

[[Page 110 STAT. 3876]]

    (f) Nonexclusivity of GAO Remedies.--In the event that the bid 
protest jurisdiction of the district courts of the United States is 
terminated pursuant to subsection (d), then section 3556 of title 31, 
United States Code, shall be amended by striking ``a court of the United 
States or'' in the first sentence.

    Approved October 19, 1996.

LEGISLATIVE HISTORY--H.R. 4194 (S. 1224):
---------------------------------------------------------------------------

HOUSE REPORTS: No. 104-245 accompanying S. 1224 (Comm. on Governmental 
Affairs).
CONGRESSIONAL RECORD, Vol. 142 (1996):
            Sept. 27, considered and passed House.
            Sept. 30, considered and passed Senate, amended.
            Oct. 4, House concurred in Senate amendment.

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