3 key takeaways from Mr. Prosen’s presentation, include:
• Disputes with the U.S. Government require “exhaustion of administrative remedies” -- which still rings true -- and Waiver of Sovereign Immunity.
• Required to allow a private party to “sue” or enter into dispute with a governmental body:
o Federal – Tucker Act waives sovereign immunity for contract disputes.
o States – Each have some form of waiver by statute.
• Federal law and FAR Subpart 33.2 defines Alternative Dispute Resolution (ADR) and encourages agencies to use ADR “to the maximum extent possible.”
• Despite (a) this stated preference for ADR and (b) granting of authority, federal agencies rarely arbitrate disputes.
• Court of Federal Claims (CFC) versus Boards of Contract Appeals (BCA) - Civilian Board of Contract Appeals (CBCA) and Armed Services Board of Contract Appeals (ASBCA):
o Both recognize and have a real preference for ADR but rarely for arbitration.
• The Federal Aviation Administration (FAA) Office of Dispute Resolution for Acquisition (ODRA) has a guide and preference for arbitration.
• Many cases are resolved via mediation at both types of tribunals.
STATE AND LOCAL
Lack of uniformity at state and local levels.
• States rarely agree to waive the “home court advantage” of state court.
• States often will look to ADR (mediation) but not to arbitration.