Tuesday, March 13, 2012


In 1971, we wrote an article entitled The Judicial Role of the Contracting Officer in U.S. Government Contracting in which we emphasized impartiality.  The idea grew out of our testimony in hearings before the Commission on Government Procurement in 1970.  In our Extorting Extra Work blog, we suggested replacing the contracting officer when a dispute over payment, extra work or contracting interpretation occurs.  Today we reported on the Naval Postgraduate School's paper which, among many other excellent observations, focuses on the rather urgent need for ADR, which includes mediation.  We now call on Congress to make mediation of disputes mandatory.

Yes, mandatory.  Both sides need to be forced to the table with an independent mediator.  And it needs to be done promptly as soon as a bona fide dispute arises.  We'll discuss how it should work.  But at the outset, we should observe that mediation can be arranged on 24 hours notice.  It would not be binding, but it should produce some salutary results.

First, what is a "bona fide" dispute and who decides it has occurred?  In our view, either side can claim a bona fide dispute exists and present evidence of its existence to the agency's ADR office (each agency would be required to have one).  The "case" would be immediately assigned to a mediator (each agency would be required to have trained mediators on call) who would first decide that a real dispute exists.  Then the contracting officer and the contractor would be immediately notified to email the mediator with a one page position paper.  The mediation would be held the next day.

Mediators would not be full time.  In fact, they would have other full time jobs in federal procurement.  But they would have to be totally independent with no conflicts of interest, meaning no prior knowledge of the procurement, its history or its participants.  Mediation training would become part of every acquisition course thereby allowing a broad range of acquisition professionals to act as mediators.  The mediators would be allowed to act just as any mediator would act in the judicial system but they would not make binding decisions.

The main point is the requirement must be mandatory and immediate.  If the parties are not forced into a settlement environment promptly and before an independent, trained arbiter, the procedure would not work effectively.  This really is what we were suggesting over 40 years ago.  The dispute must be moved quickly from the procuring contracting officer to someone else who can play a more impartial and, if you will, judicial role. 

Only then can we hope for what Abraham Lincoln wanted when he said of "the people's court" during his 1861 message to Congress:
It is as much the duty of the government to render prompt justice against itself, in favor of citizens, as it is to administer the same between private individuals.


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