Payne Hackenbracht & Sullivan

MEMORANDUM OF UNDERSTANDING FOR BOARD-ASSISTED ALTERNATIVE DISPUTES RESOLUTION OF ENG BCA NO.

This Memorandum of Understanding ("MOU" or "Agreement") has been agreed upon by representatives of XYZ and the U.S. Army Corps of Engineers ("Corps"), collectively "the parties." The purpose of this MOU is to outline a general procedure for the potential resolution or settlement of the parties' dispute that is currently pending before the Corps of Engineers Board of Contract Appeals ("Board") as Eng. BCA No. (INSERT NUMBER). This Agreement is subject to the approval of the Board to mediate the dispute between the parties currently pending as Eng. BCA No. 6449 under Contract No.        , in accordance with the terms set out in this MOU.

The general procedure which we agree upon is as follows:

  1. The Board indicated to the parties that the Board will designate an Administrative Judge to mediate the parties' dispute as outlined in this Memorandum of Understanding.
  2. Each party will have in attendance at all times as a participant in the mediation an individual with full power and authority to enter into a binding agreement to resolve all maters in dispute, including the entire amounts claimed. In this capacity, Mr. (NAME) will represent XYZ, and Ms. (NAME), the contracting officer under contract, will represent the Respondent.
  3. The mediation will commence in Los Angeles, California at 9:30 a.m. on Tuesday, January 25, 2000, and, as necessary, continue through the close of business on Thursday, January 27, 2000.
  4. At least fifteen (15) calendar days in advance of the start of mediation set forth herein, each party will submit to the mediator and the other party, by OVERNIGHT, a list of participants in the proceeding.
  5. On the first day, the Mediator will observe presentations by the parties in a joint session.  American Pacific Marine, Inc. will proceed first on the morning of the first day.  XYZ's initial presentation is expected to last three (3) hours.  The Corps' initial presentation will follow.  Both parties will have equal time for their presentations.  XYZ will have some time on the first day to respond the Corps' initial presentation.  The Mediator is invited to engage in discussions or ask any questions of any representative of either party to clarify a point or to obtain additional information.  It is expected that these presentations will take the entire first day, January 25, 2000.
  6. On the first day, each party will be permitted to present its position in whatever format each party desires, including witness testimony and exhibits.  Each party has the option of making a summary presentation using a narrative format by counsel and other party representatives, by questions and answers by representatives, or by a combination of these methods.  A party may refer to transcripts of deposition testimony.  Each party may present experts. The presentations may include a discussion of documents.  A party, through counsel or other person, may direct questions to the other party's counsel, party representatives, and experts regarding a party's presentation.  Rules of evidence will not apply and hearsay evidence will be acceptable. No swearing of party representatives, including experts, will be required. All participants will be expected to be fully open and honest in their statements and dealings with each other.
  7. On the second day, it is expected that the participants (counsel, party representatives, and Mediator) will engage in a general, round table discussion of the issues. The Mediator will participate in the discussions. This discussion may include direct discussion between participants from each side, as well as involvement of counsel and the Mediator. Following completion of both parties' presentations in the joint sessions, the Mediator in his discretion may enter into separate and sequential caucuses with each party, in which the Mediator will offer his suggestions and recommendations.
  8. If the parties have not reached a resolution of the dispute by the beginning of the third day, the Mediator will meet with both parties to provide his additional guidance. If requested by either party, the Mediator may formulate such guidance in writing, and provide it to both parties. Guidance that addresses only entitlement issues should be provided in writing to the parties prior to the conclusion of these proceedings. Any additional meetings may be held at the option of the parties and the Mediator, with the format to be determined at that time.
  9. This mediation will consider both liability and quantum issues.
  10. The presentations and negotiations will not be transcribed by a court reporter.
  11. The parties agree that each will submit to the Mediator a position paper in the general format of a brief, not exceeding twenty (20) pages by OVERNIGHT at least ten (10) calendar days prior to the scheduled start of the mediation. At least ten (10) calendar days prior to the scheduled start of the mediation (not later than January 14, 2000), each party agrees to furnish a copy of its position paper by OVERNIGHT to the other party. Position papers and attachments submitted specifically for the mediation do not become part of the record of any appeal pending before the Board.
  12. The presentations, discussions, and negotiations pursuant to this Agreement are confidential. All discussions in connection with the proceedings among representative of the parties and the Mediator are confidential. Except as otherwise expressly agreed as a condition set forth in this Memorandum of Understanding, neither this Memorandum of Understanding nor anything said or done by the Mediator or by participants for either party during the course of this mediation and the implementation of the procedures contemplated will be deemed an admission, or admissible as evidence in any pending or future Board, judicial, or other proceeding in which one or both parties are involved. However, evidence otherwise admissible before the Board is not rendered inadmissible because of its use in these mediation proceedings.
  13. All documents in the appeal file of appeal No. (INSERT), and any supplemented submitted by OVERNIGHT to the other party and to the Mediator prior to January 11, 2000, are available for the Mediator's review and consideration in this ADR.
  14. Each party shall be responsible for paying its own costs incurred in carrying out the procedures contemplated by this Memorandum of Understanding, nor shall the costs incurred by XYZ be considered to be allowable or allocable under FAR Part 31 or pursuant to the Equal Access to Justice Act.
  15. If, after three (3) days, the proceedings under this Memorandum of Understanding fail to resolve the dispute, discovery under the appeal may continue until cut off by the Armed Services Board of Contract Appeals.
  16. If a settlement is reached in accordance with this procedure, either party may request the Mediator to summarize his recommendations for use in support of a contract modification to implement the settlement.