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125 

Federal Aviation Administration, DOT 

§ 17.33 

record and prepare findings and rec-
ommendations for the review of the 
ODRA Director or the Director’s des-
ignee. 

(f) The DRO or Special Master may 

conduct a status conference(s) as nec-
essary and issue such orders or deci-
sions as are necessary to promote the 
efficient resolution of the contract dis-
pute. 

(g) At any such status conference, or 

as necessary during the Adjudicative 
Process, the DRO or Special Master 
will: 

(1) Determine the appropriate 

amount of discovery required; 

(2) Review the need for a protective 

order, and if one is needed, prepare a 
protective order pursuant to § 17.9; 

(3) Determine whether any issue can 

be stricken; and 

(4) Prepare necessary procedural or-

ders for the proceedings. 

(h) Unless otherwise provided by the 

DRO or Special Master, or by agree-
ment of the parties with the concur-
rence of the DRO or Special Master, re-
sponses to written discovery shall be 
due within thirty (30) business days 
from the date received. 

(i) At a time or at times determined 

by the DRO or Special Master, and in 
advance of the decision of the case, the 
parties shall make individual final sub-
missions to the ODRA and to the DRO 
or Special Master, which submissions 
shall include the following: 

(1) A statement of the issues; 
(2) A proposed statement of undis-

puted facts related to each issue to-
gether with citations to the adminis-
trative record or other supporting ma-
terials; 

(3) Separate statements of disputed 

facts related to each issue, with appro-
priate citations to documents in the 
Dispute File, to pages of transcripts of 
any hearing or deposition, or to any af-
fidavit or exhibit which a party may 
wish to submit with its statement; 

(4) Separate legal analyses in support 

of the parties’ respective positions on 
disputed issues. 

(j) Each party shall serve a copy of 

its final submission on the other party 
by means reasonably calculated so that 
the other party receives such submis-
sions on the same day it is received by 
the ODRA. 

(k) The DRO or Special Master may 

decide the contract dispute on the 
basis of the administrative record and 
the submissions referenced in this sec-
tion, or may, in the DRO or Special 
Master’s discretion, direct the parties 
to make additional presentations in 
writing. The DRO or Special Master 
may conduct hearings, and may limit 
the hearings to the testimony of spe-
cific witnesses and/or presentations re-
garding specific issues. The DRO or 
Special Master shall control the nature 
and conduct of all hearings, including 
the sequence and extent of any testi-
mony. Evidentiary hearings on the 
record shall be conducted by the 
ODRA: 

(1) Where the DRO or Special Master 

determines that there are complex fac-
tual issues in dispute that cannot ade-
quately or efficiently be developed 
solely by means of written presen-
tations and/or that resolution of the 
controversy will be dependent on his/ 
her assessment of the credibility of 
statements provided by individuals 
with first-hand knowledge of the facts; 
or 

(2) Upon request of any party to the 

contract dispute, unless the DRO or 
Special Master finds specifically that a 
hearing is unnecessary and that no 
party will be prejudiced by limiting the 
record in the adjudication to the par-
ties’ written submissions. All witnesses 
at any such hearing shall be subject to 
cross-examination by the opposing 
party and to questioning by the DRO or 
Special Master. 

(l) The DRO or Special Master shall 

prepare findings and recommendations, 
which will contain findings of fact, ap-
plication of the principles of the AMS 
and other law or authority applicable 
to the findings of fact, and a rec-
ommendation for a final FAA order. 

(m) The DRO or Special Master shall 

conduct a de novo review using the pre-
ponderance of the evidence standard, 
unless a different standard is pre-
scribed for a particular issue. Notwith-
standing the above, allegations that 
government officials acted with bias or 
in bad faith must be established by 
clear and convincing evidence. 

VerDate Sep<11>2014 

11:00 Mar 08, 2018

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