Originially from: World Arbitration and Mediation Review (WAMR)

‘PARTNERING’ IN GOVERNMENT CONTRACTS:
THE ULTIMATE IN DISPUTE RESOLUTION?
By David P. Johnson, Senior Counsel for Contracting and Environmental
Compliance, U.S. Army Corps of Engineers, Portland District; Adjunct Professor
of Law for government contracts, Lewis and Clark Law School; member of the
American Arbitration Associations panel of arbitrators.
Government contracting has become increasingly adversarial. It’s time for
contracting agencies and their contracting partners to embark on a new way of
doing business or, as some might argue, return to an “old” way of doing business
whose time has come again. The Portland District of the U.S. Army Corps of
Engineers (Corps) has set its course on a process called partnering, to replace the
adversarial relationship with a cooperative approach.
Partnering may represent the ultimate in alternative dispute resolution. The
key element is prevention. Partnering attempts to put the handshake back into the
contracting process.
A New Way of Doing Business
In August 1990, the Chief of Engineers, General H. J. Hatch, stated that
“[partnership demands the will to resolve disputes. Clearly, the best dispute
resolution is dispute prevention. Acting to prevent disputes before they occur is
key to building new cooperative relationships. By taking the time at the start of a
project to identify common goals, common interests, lines of communication, and
a commitment to cooperative problem solving, we encourage the will to resolve
disputes and achieve project goals.” (See 4 BNA’s Alternative Dispute Resolution
Report 304)
A constructive working relationship with the private sector does not mean that
the vigilance necessary to protect the public interest is lessened. All federal
procurement oversight responsibilities are carried out as required by federal
regulations. These regulations do not prohibit cooperation or any process that can
legally enhance a cooperative spirit.
A critical aspect of partnering is the incorporation of total quality management
precepts into the process of contract performance. These precepts include
conformance to requirements, prevention, zero defects, and strict attention to the
costs associated with non-conformance.
The partnering concept initially emerged from the private-sector construction
industry. During the mid-80s, DuPont Engineering decided a new approach to
contracting was needed to succeed against foreign competition. DuPont believed
that some of the benefits of “total quality management”—continuous