THE ANSWER IS ADR

Many years ago we wrote a law journal article on the judicial role of the contracting officer.  We can send  you a copy.  We also have written several blog posts pleading contracting officers to recognize that role in deciding issues and disputes.  Use our word search tool to review these posts.  In frustration, we proposed the establishment of a disputes contracting officer (DCO) to the Commission on Government Procurement, circa 1970. 

Guess what?  We have been ignored.  Most contracting officers act as advocates for the government's position and lack the desire to independently exercise a judicial role in handling disputes.  Never mind all the law we quoted in our law journal article.  Case law has made it clear contracting officers must act as judicial officers in handling disputes.

Enter ADR.  Alternative Dispute Resolution is the answer.  At any stage, say disagreements over contract interpretation, the parties may present their positions to an independent neutral real life judge for a binding or non binding decision.  Yes, at any stage of an issue or a possible dispute.  At any stage also means to resolve the REA or the threat to terminate for default.  Any issue, any stage.  The doors of the ASBCA and CBCA are wide open to hear your request to get a real judge involved.

We have seen many cases where the parties should have sought ADR.  Take the hang up over how the contract provisions should be interpreted.  Take the question of whether extra work and cost is truly compensable.  Take questions of concurrent delays and remission of liquidated damages.  All of these issues can be quickly, efficiently and economically resolved  by ADR.

But it takes two to tango.  Both parties must agree to make the request for ADR and they must agree on the procedures for presentation and resolution.  The ASBCA, for example, has instructional guidance for requesting ADR and a sample agreement available at its website. 

One last plea.  Contracting officers have a duty to act judicially, not as advocates for the government's position when a dispute arises.  That won't happen.  The answer is ADR.  Please.

bill@spriggslawgroup.com