title-14-part-17-sec17-17

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14 CFR Ch. I (1–1–24 Edition)

§ 17.17

shall be duly authorized to represent
the protester, to be the point of con-
tact;

(3) The SIR number or, if available,

the contract number and the name of
the CO;

(4) The basis for the protester’s sta-

tus as an interested party;

(5) The facts supporting the timeli-

ness of the protest;

(6) Whether the protester requests a

protective order, the material to be
protected, and attach a redacted copy
of that material;

(7) A detailed statement of both the

legal and factual grounds of the pro-
test, and one (1) copy of each relevant
document;

(8) The remedy or remedies sought by

the protester, as set forth in § 17.23;

(9) The signature of the legal rep-

resentative, or another person duly au-
thorized to represent the protester.

(d) If the protester wishes to request

a suspension of the procurement or
contract performance, in whole or in
part, and believes that a compelling
reason(s) exists to suspend the procure-
ment or contract performance because
of the protested action, the protester
shall, in its initial filing:

(1) Set forth such compelling rea-

son(s), supply all facts and documents
supporting the protester’s position; and

(2) Demonstrate—
(i) The protester has alleged a sub-

stantial case;

(ii) The lack of a suspension would be

likely to cause irreparable injury;

(iii) The relative hardships on the

parties favor a suspension; and

(iv) That a suspension is in the public

interest.

(3) Failure of a protester to provide

information or documents in support of
a requested suspension or failure to ad-
dress the elements of paragraph (d)(2)
of this section may result in the sum-
mary rejection of the request for sus-
pension, or a requirement that the pro-
tester supplement its request prior to
the scheduling of a Product Team re-
sponse to the request under § 17.17(a).

(e) Concurrent with the filing of a

protest with the ODRA, the protester
shall serve a copy of the protest on the
CO and any other official designated in
the SIR for receipt of protests, by
means reasonably calculated to be re-

ceived by the CO on the same day as it
is to be received by the ODRA. The pro-
test shall include a signed statement
from the protester, certifying to the
ODRA the manner of service, date, and
time when a copy of the protest was
served on the CO and other designated
official(s).

(f) Upon receipt of the protest, the

CO shall notify the awardee of a chal-
lenged contract award in writing of the
existence of the protest. The awardee
and/or interested parties shall notify
the ODRA in writing, of their interest
in participating in the protest as inter-
venors within two (2) business days of
receipt of the CO’s notification, and
shall, in such notice, designate a per-
son as the point of contact for the
ODRA.

(g) The ODRA has discretion to des-

ignate the parties who shall participate
in the protest as intervenors. In pro-
tests of awarded contracts, only the
awardee may participate as an inter-
venor as a matter of right.

[76 FR 55221, Sept. 7, 2011, as amended by
Doc. No. FAA–2017–0075, 82 FR 14429, Mar. 21,
2017]

§ 17.17

Initial protest procedures.

(a) If, as part of its initial protest fil-

ing, the protester requests a suspension
of procurement activities or contractor
performance in whole or in part, in ac-
cordance with § 17.15(d), the Product
Team shall submit a response to the re-
quest to the ODRA by no later than the
close of business on the date of the ini-
tial scheduling conference or on such
other date as is established by the
ODRA. Copies of the response shall be
furnished to the protester and any in-
tervenor(s) so as to be received within
the same timeframe. The protester and
any intervenor(s) shall have the oppor-
tunity of providing additional com-
ments on the response within two (2)
business days of receiving it. Based on
its review of such submissions, the
ODRA, in its discretion, may—

(1) Decline the suspension request; or
(2) Recommend such suspension to

the Administrator or the Administra-
tor’s designee. The ODRA also may im-
pose a temporary suspension of no
more than ten (10) business days, where
it is recommending that the Adminis-
trator impose a suspension.

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§ 17.19

(b) Within five (5) business days of

the filing of a protest, or as soon there-
after as practicable, the ODRA shall
convene an initial status conference for
purposes of:

(1) Reviewing the ODRA’s ADR and

adjudication procedures and estab-
lishing a preliminary schedule;

(2) Identifying legal or other prelimi-

nary or potentially dispositive issues
and answering the parties’ questions
regarding the ODRA process;

(3) Dealing with issues related to pro-

tected information and the issuance of
any needed protective order;

(4) Encouraging the parties to con-

sider using ADR;

(5) Appointing a DRO as a potential

ADR neutral to assist the parties in
considering ADR options and devel-
oping an ADR agreement; and

(6) For any other reason deemed ap-

propriate by the DRO or by the ODRA.

will have five (5) business days from
the date of the initial status con-
ference to decide whether they will at-
tempt to use an ADR process in the
case. With the agreement of the ODRA,
ADR may be used concurrently with
the adjudication of a protest. See
§ 17.37(e).

(d) If the Product Team and protester

elect to use ADR proceedings to resolve
the protest, they will agree upon the
neutral to conduct the ADR pro-
ceedings (either an ODRA DRO or a
compensated neutral of their own
choosing) pursuant to § 17.37, and shall
execute and file with the ODRA a writ-
ten ADR agreement. Agreement of any
intervenor(s) to the use of ADR or the
resolution of a dispute through ADR
shall not be required.

(e) If the Product Team or protester

indicate that ADR proceedings will not
be used, or if ADR is not successful in
resolving the entire protest, the ODRA
Director upon being informed of the
situation, will schedule an adjudication
of the protest.

§ 17.19

Motions practice and dismissal

or summary decision of protests.

(a) Separate motions generally are

discouraged in ODRA bid protests.
Counsel and parties are encouraged to
incorporate any such motions in their
respective agency responses or com-

ments. Parties and counsel are encour-
aged to attempt to resolve typical mo-
tions issues through the ODRA ADR
process. The ODRA may rule on any
non-dispositive motion, where appro-
priate and necessary, after providing
an opportunity for briefing on the mo-
tion by all affected parties. Unjustifi-
able, inappropriate use of motions may
result in the imposition of sanctions.
Where appropriate, a party may re-
quest by dispositive motion to the
ODRA, or the ODRA may recommend
or order, that:

(1) The protest, or any count or por-

tion of a protest, be dismissed for lack
of jurisdiction, timeliness, or standing
to pursue the protest;

(2) The protest, or any count or por-

tion of a protest, be dismissed, if frivo-
lous or without basis in fact or law, or
for failure to state a claim upon which
relief may be had;

(3) A summary decision be issued

with respect to the protest, or any
count or portion of a protest, if there
are no material facts in dispute and a
party is entitled to summary decision
as a matter of law.

(b) In connection with consideration

of possible dismissal or summary deci-
sion, the ODRA shall consider any ma-
terial facts in dispute, in a light most
favorable to the party against whom
the dismissal or summary decision
would operate and draw all factual in-
ferences in favor of the non-moving
party.

on its own initiative, the ODRA may,
at any time, exercise its discretion to:

(1) Recommend to the Administrator

dismissal or the issuance of a summary
decision with respect to the entire pro-
test;

(2) Dismiss the entire protest or issue

a summary decision with respect to the
entire protest, if delegated that au-
thority by the Administrator; or

(3) Dismiss or issue a summary deci-

sion with respect to any count or por-
tion of a protest.

(d) A dismissal or summary decision

regarding the entire protest by either
the Administrator, or the ODRA by
delegation, shall be construed as a final
agency order. A dismissal or summary
decision that does not resolve all
counts or portions of a protest shall