The contracting officer says the parties are at an impasse. The contractor has not submitted a claim nor taken an appeal. The contracting officer has threatened default termination but not issued a final decision. The parties are at loggerheads over interpretation of the contract. Each side has an interpretation of the contract language but the parties cannot agree the contract is therefore ambiguous and must be construed against the government. The contractor wishes a court declaratory relief and injunction action were available which it is not. What hope the parties have that the impasse may be resolved short of litigation?
Both the Civilian Board of Contract Appeals (CBCA) and the Armed Services Board of Contract Appeals (ASBCA), have procedures for Alternative Dispute Resolution (ADR) which permit the parties to request a judge to act as a neutral to conduct ADR even in advance of a claim, final decision or appeal. That is, if both parties agree, they may request an independent actual judge hear their positions and mediate a resolution of the impasse. CBCA Rule 53 says the Board may provide ADR services for "pre-claim and pre-final decision" matters. A judge can be appointed as an independent neutral. ADR Procedures at the ASBCA mimic the CBCA procedures.
ADR procedures are tailored to the particular needs and desires of the parties. The procedures can be simple and pragmatic. The request to the Board must be in writing, signed by both parties and the parties must agree on a written ADR procedure plan. The Boards will assist with the preparation and implementation of that plan. The role of the judge must be clear and the Boards can assist in defining that role. The parties can actually request that a certain judge be assigned.
The types of ADR procedures available include facilitative mediation, evaluative mediation, mini-trial, non-binding advisory opinion and summary binding decision. Facilitative mediation involves informal presentations followed by the judge meeting with the parties separately and together to facilitate settlement of differences. Evaluative mediation adds the element of the judge reciting the strengths and weaknesses of the parties' positions. In a mini-trial, the judge sits with the parties' principals to hear presentations and evaluate evidence. The judge mediates a settlement or renders and non-binding or binding decision. If binding, the decision is non- precedential. The Boards encourage the parties to tailor the ADR procedures to their particular needs.
So if the parties are truly at an impasse, there is a way out. It is possible even before the issues arise to the level of a claim or final decision, the parties may get a real judge involved. That is probably the smartest thing they can do to avoid the trouble, delay and expense of litigation.
bill@spriggslawgroup.com
ADR procedures are tailored to the particular needs and desires of the parties. The procedures can be simple and pragmatic. The request to the Board must be in writing, signed by both parties and the parties must agree on a written ADR procedure plan. The Boards will assist with the preparation and implementation of that plan. The role of the judge must be clear and the Boards can assist in defining that role. The parties can actually request that a certain judge be assigned.
The types of ADR procedures available include facilitative mediation, evaluative mediation, mini-trial, non-binding advisory opinion and summary binding decision. Facilitative mediation involves informal presentations followed by the judge meeting with the parties separately and together to facilitate settlement of differences. Evaluative mediation adds the element of the judge reciting the strengths and weaknesses of the parties' positions. In a mini-trial, the judge sits with the parties' principals to hear presentations and evaluate evidence. The judge mediates a settlement or renders and non-binding or binding decision. If binding, the decision is non- precedential. The Boards encourage the parties to tailor the ADR procedures to their particular needs.
So if the parties are truly at an impasse, there is a way out. It is possible even before the issues arise to the level of a claim or final decision, the parties may get a real judge involved. That is probably the smartest thing they can do to avoid the trouble, delay and expense of litigation.
bill@spriggslawgroup.com
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